text:
    J. DAWSON MATHEWS v. STATE.
    No. A-3326.
    Opinion Filed April 7, 1921.
    Rehearing Denied June 13, 1921.
    (198 Pac. 112.)
    (Syllabus.)
    1. Courts — Jurisdiction—Effect of Illegal Means in Getting Accused Froim Another State. In a criminal case the courts of this state will not inquire as to whether the laws of some other state have been violated in transporting an accused person into the jurisdiction of this state. If the court lawfully acquires jurisdiction of the person after he is within reach of its processes, the means. Used to bring him there will not be a subject of inquiry.
    2. Evidence — Proof qf Conspiracy not Alleged. It is a general: rule that upon the trial of one accused of a crime evidence is admissible to prove a conspiracy to commit the crime charged, although the conspiracy is not charged in the indictment. This is not permitted for the purpose of allowing a conviction for a crime not charged, but to lay a foundation for the admission of evidence.
    3. False Pretenses — Information—Sufficiency—False Pretense to1Bank. A statement contained in an information, to the effect that the false pretenses charged were made to a banking corporation, as distinguished from its officers and agents, is sufficient to give the accused the necessary information as to the scope and character of the crime charged. A corporation is an artificial person, made so by statute, and cannot act or be influenced except through its officers and agents.
    4. Same. It is not necessary for the information to state that by reason of the false pretenses the bank bought the worthless commercial paper of which complaint is made. It makes no difference whether the bank parted with its money through a sale of the commercial paper, or whether it was hypothecated for that purpose. The gist of the offense is the procuring of the money, or something of value, by means of the false pretenses.
    5. Jury — Excusing Juror Before Examination — Discretion of Court.. The right of the accused in the selection of the jury is one of exclusion of incompetent jurors, and not one of inclusion of particular persons who are competent. No fixed rule can be applied to the numerous reasons why a juror may be excused from the regular panel before examination in the case, and whether a juror should be excused before being examined in any case rests in the sound discretion of the court, and the exercise of such discretion will not be disturbed unless it is shown that such discretion has been abused, to the actual prejudice of the complaining party.

      6. Appeal and Error — Harmless Error — Examination of Jurors. In the examination of jurors, where no attempt is made to state in advance what the instructions would be or what the facts would disclose, it was not prejudicial error to permit the state to ask certain prospective jurors whether, if they were convinced by the instructions of the court and the evidence beyond a reasonable doubt of the guilt of the defendant, they would hesitate to find the defendant guilty. The purpose of such questions was doubtless to, ascertain whether the jurors would accept the instructions of the court as the law of the case.
    7. Jury — Qualifications of Juror. The mere fact that a prospective juror is a depositor in the bank interested in the prosecution of the defendant will not disqualify such juror, where it is not shown that his business relations are such as might influence his verdict or cause the bank to oppress him or place him at the mercy of the bank.
    8. Same. Where a juror, from what he had heard or read, believed that a fraud had been committed, but had no recollection or opinion as to who had perpetrated the fraud, and had formed and expressed no opinion as to the guilt of the defendant, he is not disqualified by the mere fact of his belief that some person, to him unknown, had committed the fraud.
    9. Evidence — Hearsay. Where it is claimed that a banking corporation was systematically engaged in issuing fraudulent and worthless commercial paper, the fact of the insolvency of such corporation may be shown by statements and records of public officers whose duty it was to inquire into and examine its fiscal affairs, and this may be supplemented by reports of commercial agencies, and by information obtained from bankers and others, in the nature of hearsay evidence.
    10. Courts — Jurisdiction—Formulation of Conspiracy in Another State. The fact that conspiracy is formulated in another state and that the defendant, a co-conspirator, was not within this state prior to1 the commission of the overt act of which complaint is made, will not deprive the courts of this state of jurisdiction to try such defendant when later apprehended within its territorial jurisdiction. Every person participating in an unlawful conspiracy is deemed to be a principal, and is punishable as such, although he may not have been present or within the jurisdiction of the court when the overt act was consummated.
    11. Evidence1 — Conspiracy—Order of Evidence. It is immaterial in what order testimony predicated upon a conspiracy is introduced, if the series of facts and circumstances shown in evidence ultimately make a prima facie case of conspiracy. A conspiracy may, and generally must, be proved by a number of independent acts, conditions and circumstances tending to show an unlawful common purpose of the conspirators.

      12. False Pretenses — Caveat Emptor Inapplicable. Where it appears that a trust company issues worthless commercial paper, denominated "Time Certificates,” and these certificates were ingeniously designed and calculated to mislead and deceive persons of ordinary prudence, and where the circumstances surrounding the sale of one of these certificates were purposely arranged to deceive, the rule of caveat emptor will not apply.
    Appeal from District Court, Payne County; John P. Hickam, Judge.
    J. Dawson Mathews was convicted of obtaining money by false pretense and he appeals.
    Affirmed.
    J. M. Springer and E. G. Wilson, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

On the 24th day of October, 1917, plaintiff in error, J. Dawson Mathews, hereinafter referred to as defendant, was convicted of the crime of obtaining money by false pretenses from the Oklahoma State Bank of Cushing on the 19th day of March, 1917, and was sentenced to confinement in the state penitentiary for a term of three years. From this judgment and sentence he appeals.

It appears from the evidence on the part of the state: That at and before the date of the offense charged one J. Greeley Jones was operating a purported banking institution in Houston, Tex., known as the Commonwealth Trust Company, with a reported capital stock of $250,000; that the defendant, for some time prior to the‘alleged offense, appeared to be in some way interested in this trust company, and spent much of his time at its offices, and advised and directed some of its business transactions; that the defendant was one of the principal customers of this concern, in buying and disposing of its worthless securities in the form of “time certificates,” purchased in the name of J. A. Brown, for defendant’s own benefit and profit, between the 15th day of February and the 5th day of March, 1917, of the total amount of $175,000; that the defendant was a man of very limited means and resource^, and that he obtained these certificates by exchanging for them oil stocks that were worthless, and known by him at the time to be worthless.

That the place of business of this Commonwealth Trust Company was in two rear rooms on the fourth floor of the Beatty Building in Houston, Tex., that the office force of the institution consisted of a bookkeeper, who also exercised the functions of cashier, teller, and stenographer; that the concern had no assets of any value, excepting the office furniture and fixtures of the probable value of $300.

That the defendant procured these time certificates — presumably and ostensibly certificates of deposit — to be issued to J. A. Brown, a fictitous person not in being; that the defendant assumed to act for J. A. Brown under a power of attorney executed in his favor in 1914, and defendant, conspiring together with others, indorsed these time certificates to whoever could be induced to buy, and, among others, sold a certificate in the amount of $5,000, due in six months from date, to the State Bank of Cushing, Okla., on March 19, 1917.

That these time certificates were without value, and that the trust company was wholly insolvent, and that the scheme and plan of the defendant and his confederates in selling these time certificates to innocent purchasers amounted to a mere confidence game, by means of which unsuspecting banks and others were fleeced out of large sums of money, in the belief that they were purchasing time certificates of deposit issued by a reputable, solvent banking institution.

That the defendant, at different times before and after the alleged offense, caused a number of these time certificates to be sent by express to G-. C. Wisdom and others in Oklahoma City; that on the 15th day of March, 1917, G-. C. Wisdom and Charles H. Garnett appeared at the Oklahoma State Bank at Cushing, and represented to the officers of the bank that they were contemplating closing a transaction of the sale and purchase of an oil lease, and that they had a certificate of deposit for the sum of $5,000, issued by the Commonwealth Trust Company of Houston, Tex., to J. A. Brown and indorsed by him to G. C. Wisdom, and that they desired to cash the same, representing to the bank that the certificate of deposit was regular, and that the Commonwealth Trust Company was a solvent, going concern, and that the indorsement and transfer were regular and valid.

The bank at Cushing did not cash this certificate on this day, but wrote a letter to the Commonwealth Trust Company, inquiring about its validity. In reply the trust company wrote to the bank that the certificate would be good if it bore the indorsement of J. A. Brown, and that the indorsement of Mr. Wisdom would be the only transfer necessary to convey good title to the bank; that the certificate and the indorsement of J. A. Brown were both genuine; that they did not care to discount their paper nor to anticipate payment at that time. Upon the strength of the representations made by Wisdom and Garnett and the information received in the letter from the trust company, the bank had the time certificate indorsed and transferred to them by Wisdom and Garnett, and paid to them for the certificate of deposit the sum of $4,750, believing that the certificate was valid, and that the trust company was a solvent, going concern.

The testimony shows that at the request of the Attorney General of the State of Texas a bank examiner made an investigation of the affairs of this trust company, and found that it had no assets of any value, and that the affairs of this trust company were a little later placed in the hands of a receiver, and that the receiver could find no assets sufficient tc pay the cost of the receivership.

Defendant admits that he purchased these time certificates with a small amount of cash, and the assignment to the trust company of certificates of stock of the Monte Carlo Oil Refining Company. Defendant claims that in good faith ha sold these time certificates so procured from the trust company to Wisdom, and to any others who would buy, for from-7 to 20 per cent, of the amounts named in the respective certificates, but that he had no connection with nor interest in their disposal by those who purchased from him, and was not acting in concert with Wisdom or others; that he had no connection with nor interest in the transfer of the particular certificate bought by the Cushing bank from Wisdom and Gar-nett; that at that time he was not in Oklahoma, and that he had not been in Oklahoma for years previous; that his connection with this and other like certificates ended as soon as he parted with such certificates and received the money for them to the persons to whom they were sold; that previous to these transactions he was engaged in selling and dealing in stocks and securities for J. A. Brown, under a power of attorney issued in 1914; and no showing was made that he had ever had an accounting or settlement with Brown; that Brown was a man of upwards of 70 years of age, occupying a rented farm in Texas; that he had not heard from him for months or years, but, so far as he knew, he was still living.

The evidence shows that this defendant was arrested ip Houston, Tex., and, without a requisition, was forced to come to Oklahoma under arrest, after which he was informed ! against, tried, and convicted in this case.

A more complete recitation of the facts brought out in evidence would make an interesting and entertaining story, but would serve no useful purpose as a precedent to guide lawyers and judges in the trial of future cases. Suffice is to say that from an examination of the entire testimony and the similarity of names and methods used by the parties J. Greely Jones and J. Dawson Mathews were emulating the example and perhaps surpassing the manipulations in high finance of J. Rufus Wallingford of fiction.

In his brief the defendant urges 12 assignments of error, as follows:

(1) The court below erred in overruling the motion of the defendant to quash the information.

(2) The court below erred in overruling the demurrer of the defendant to the information.

(3) The court below erred in discharging and releasing jurors without just cause, over the objection of the defendant, and without an examination of such jurors in open court.

(4) The court below erred in permitting the state to commit the jurors on their voir dire to the theory that the instructions of the court should be considered by the jury as having probative force, in that they were requested to say, in answer to questions asked by the state, that if they were convinced by the instructions and the evidence beyond a reasonable doubt of the guilt of the defendant they would not hesitate to find him guilty.

(5) The court below erred in permitting improper, incompetent, irrelevant, hearsay, and illegal evidence in behalf of the state, over the objections of the defendant.

(6) The court below erred in overruling the challenge of the defendant' to jurors A. H. Ahrberg and A. M. Greiner and Dalrymple.

(7) The court below erred in its instructions to the jury.

(8) The court below erred in refusing to give proper instructions to the jury, which were requested in writing by the defendant.

(9)The court below erred in refusing to direct a verdict in favor of the defendant.

(10) The verdict of the jury and the judgment of the court are not supported by the evidence, and are contrary to the evidence.

(11) Prejudicial errors of law occurred at the trial, and were duly excepted to at the time by the defendant.

(12) The court below erred in overruling the motion of the defendant for a new trial.

Under the first assignment of error counsel for defendant contends that the court had no jurisdiction of the defendant, for the reason that he was brought into this state without his consent, by force and without process of extradition. In support of this contention, defendant in his brief refers to section 29, article 2, of our state Constitution, providing that—

“No person shall be transported out of the state for any offense committed within the state, nor shall any person be transported out of the state for any purpose, without his consent, except by due process of law; but nothing in this provision shall prevent the operation of extradition laws, or the transporting of persons sentenced for crime, to other states for the purpose of incarceration.”

Defendant claims that, in the absence of proof, there is a presumption that the Constitution and laws of the state of Texas are the same as in this state. Assuming that this is true, in a criminal case the courts of this state will not inquire as to whether the laws of some other state have been violated in transporting an accused person into the jurisdiction of this state; and, if the court lawfully acquired jurisdiction of a person after he is within the reach of its process, the means used to bring him there will not be a subject of inquiry. Ex parte Johnson, 167 U. S. 120, 17 Sup. Ct. 735, 42 L. Ed. 103; State v. May, 57 Kan. 428, 46 Pac. 709; Brooklin v. State, 26 Tex. App. 121, 9 S. W. 735; Ex parte Davis, 51 Tex. Cr. R. 608, 103 S. W. 891, 12 L. R. A. (N. S.) 225, 14 Ann. Cas. 522, and note; Commonwealth v. Ramunno, 219 Pa. 204, 68 Atl. 184, 14 L. R. A. (N. S.) 209, 123 Am. St. Rep. 653, 12 Ann. Cas. 818; Pettibone v. Nicholi, 203 U. S. 192, 27 Sup. Ct. 111, 51 L. Ed. 148, 7 Ann. Cas. 1047.

We do not mean to be understood as approving the practice of detectives or officers of the law in kidnapping or removing a person accused of crime from one jurisdiction to another without due process of law. A person so transported has his remedies, and may obtain redress in the jurisdiction where his rights and liberty were violated.

Second. The defendant urges that the court erred in overruling the demurrer of the defendant to the information, for the reason that the information in this case charges the offense of obtaining money by false pretenses and conspiracy. The information was in two counts, the first charging the crime of false pretense, and the second count charging the same offense, but pleading some of the evidence tending to show that the defendants had conspired and confederated to commit the offense, and pursuant to that conspiracy or confederation did commit the crime. Both counts charge the commission of the same offense, viz., false pretense, but the second count contains allegations of a conspiracy leading up to the commission of the crime, and the allegations may be regarded as surplusage only. The state elected to stand upon the first count, but that did not deprive the state of the right to show that a conspiracy did exist, culminating in the commission of the crime charged.

In order to connect the defendant with the crime of false pretense, under the circumstances in this case, and in order to show the intent and purpose of the persons interested in the sale of these time certificates, it was permissible to show that a conspiracy existed between them to sell these worthless certificates to innocent parties. It is a general rule that upon the trial'of one accused of a crime evidence is admissible to prove a conspiracy to commit the crime charged, although the conspiracy is not charged in the indictment. This is not permitted for the purpose of allowing a conviction of a crime not charged, but to lay a foundation for the admission of evidence. Irvin v. State, 11 Okla. Cr. 301, 146 Pac. 453; 5 R. C. L. 1087, 1088; State v. Ruck, 194 Mo. 416, 92 S. W. 706, 5 Ann. Cas. 976, and note; State v. Ryan, 47 Or. 338, 82 Pac. 703, 1 L. R. A. (N. S.) 862; Spies v. People, 122 Ill. 1-12, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320, and note.

It has been uniformly held by the courts of this state and of other states that testimony tending to show the commission of the crime charged is not inadmissible because it also discloses the commission of another and different crime. Irvin v. State, supra, and cases therein cited.

It is further insisted that the information is defective and insufficient because it is alleged therein that the false pretenses were made to the Oklahoma State Bank at Cushing, as distinguished from its officers, and that the bank relied thereon and was deceived thereby, and by reason thereof parted with its money. It is true that a banking corporation in an artificial person, but section 2929, Rev. Laws 1910, provides that the word “person” includes corporations. A corporation cannot act in a business capacity except through its officers and agents. We think the language of the information, in this regard, sufficiently gave the accused the necessary information of the scope and character of the crime charged, and that the naming of the officer to whom the false pretenses were made was not necessary State v. Turley, 142 Mo. 403, 44 S. W. 267; State v. Hulder, 78 Minn. 524, 81 N. W. 532; Roberts v. People, 9 Colo. 458, 13 Pac. 630.

The defendant nrges further that the information is defective for the reason that it does not set out specifically that the bank bought this particular time certificate. The correct rule applying to this part of the information, supported by abundant authority, is stated in 19 Cyc. 430, as follows:

“No particular form of words is necessary; allegations that ‘by means of the false pretense’ or ‘relying on the false pretense,’ or the like, is sufficient where it is apparent that the delivery of the property was the natural result of the pretense alleged. The same general rule applies when the false pretense used is a token. ’ ’

It makes no difference whether the money was received from the sale of this certificate, or whether it was pledged or hypothecated for that purpose. The gist of the offense is the procuring of money or something of value by means of the false pretense. State v. Feeback, 3 , Okla. Cr. 508, 107 Pac. 442; Teague v. State, 13 Okla. Cr. 270, 163 Pac. 954; State v. Boon, 49 N. C. 463; Commonwealth v. Lincoln, 93 Mass. (11 Allen) 233; Ter. v. Underwood, 8 Mont. 131, 19 Pac. 398; People v. Luttermoser, 122 Mich. 562, 81 N. W. 565; People v. Kinney, 110 Mich. 97, 67 N. W. 1089; People v. Haas, 28 Cal. App. 182, 151 Pac. 672.

Third. In the third specification of error the defendant complains that the court excused two jurors, Mr. Dunn and Mr. Wheeler, from the regular panel before examination in this case. Generally the right of the accused in the selection of the jury is one of exclusion of incompetent jurors, and not one of inclusion of particular persons who are competent. No fixed rule can be applied to the numerous reasons why a juror should be excused; and whether a juror should be excused before being examined in any case rests in the sound discretion of the court, and the exercise of such discretion will not be disturbed unless it is shown that such discretion bas been abused, to the actual prejudice of the complaining party. Beatty v. State, 5 Okla. Cr. 105, 113 Pac. 237; Omaha So. Ry. v. Beeson, 36 Neb. 361, 54 N. W. 557; 24 Cyc. 26.

Fourth. It is claimed by the defendant that the court erred in permitting the state to commit certain jurors to the theory that the instructions of the court should be considered by them as having probative force, by permitting the state to propound to them questions to the effect that if they were convinced by the instructions of the court and the evidence beyond a reasonable doubt of the guilt of the defendant, whether they would hesitate to find the defendant guilty. The purpose of these questions was to ascertain from the jurors whether or not they would accept the instrudions of the court as the law of the case. No attempt was made to state in advance what the instructions would be or what the facts would be, so as to pledge the jurors in advance to render a verdict for the state on a given state of law and fact. These questions, fairly interpreted, did not eliminate from the consideration of the jurors questions of fact that might not be touched upon in the instructions.

Fifth. Complaint is made that the court below erred in overruling the challenge of the defendant to Jurors A. H. Ahr-berg, Greiner and Dalrymple. Juror Dalrymple said that he was a depositor in the Oklahoma State Bank at Cushing, the injured party. The record shows that this juror was in other respects qualified. The mere fact that he was a depositor in this bank did not disqualify him, where it was not shown that his business relations were such as might influence his verdict or cause the bank to oppress him or place/ him at the mercy of the bank. Thompson v. Douglass, 35 W. Va. 337, 13 S. B. 1015; Kennedy v. Holladay, 105 Mo. 24, 16 S. W. 688.

Jurors Ahrberg and Greiner both stated that from what they had heard and read in. the newspapers they had formed an opinion that a fraud had been committed, but that they had no recollection tor opinion as to whether this defendant was implicated in the commission of such fraud; that they had no opinion as to who was responsible for the commission of the crime charged; that they never had had, and did not then have, any opinion as to the guilt or innocence of the defendant.

An opinion must be of such a fixed character as will overcome the presumption of innocence of the accused, and the fact that, a prospective juror has an opinion upon some feature of the' case that will require some evidence to remove wall not necessarily disqualify him. An opinion must always be one of degree, and it is for the court to determine whether the opinion entertained is of that fixed or permanent character which disqualifies him from coming to the case in a fair and impartial frame of mind, unaffected by prejudice or favor towards the accused. To render a juror incompetent ■on the ground of his having an impression or an opinion upon some issue in the case, it must appear that he entertains a fixed and settled conviction of the guilt or innocence of the defendant, or that he has expressed such a conviction. These two jurors had never formed nor expressed an opinion as to the guilt or innocence of the defendant in this case; from what •they had heard or read they merely believed that a fraud had been committed, but had no recollection or opinion as to who had perpetrated the fraud. It has been held by this court that a mere impression, from reading the newspapers, that a tragedy had occurred is no disqualification of a juror. Scribner v. State, 3 Okla. Cr. 601, 108 Pac. 422, 35 L. R. A. (N. S.) 1014, note; Turner v. State, 4 Okla. Cr. 164, 111 Pac. 988; Gentry v. State, 11 Okla. Cr. 355, 146 Pac. 719.

In a homicide case an opinion gained from the newspapers' that the accused had killed the deceased, but not as to his guilt, is not disqualifying when the only issue in the case is on self-defense. State v. Gould, 40 Kan. 258, 19 Pac. 739; State v. Sorter, 52 Kan. 531, 34 Pac. 1036; State v. Morrison, 67 Kan. 144, 72 Pac. 554.

Where jurors, from what they had heard and read, had formed an opinion which would take evidence to remove, as to the fact of crime, but not as to who was the criminal, it was held no error to accept them. State v. Haworth, 24 Utah, 398, 68 Pac. 155.

Sixth. Wide latitude is permissible in the examination of witnesses to show a conspiracy to commit a crime. Without here analyzing the testimony claimed by the defendant to be incompetent and inadmissible, we find no prejudicial error in the admission of the testimony of the receiver and the special bank examiner of the state of Texas, to the effect, that this trust company had no assets, and that its commercial paper was worthless. The information gathered by these officers was derived from an examination of the books and records of the trust company, supplemented by information obtained from banks and commercial agencies, and the latter was not incompetent on account of being hearsay evidence. It has been frequently held that the question of the solvency of an individual or of a corporation, in eases of this character involving fraud, may be established by hearsay evidence. Greenleaf on Evidence (16th Ed.) vol. 1, § 190b; Jones on Evidence (2d Ed.) § 206; Ellis v. State, 138 Wis. 513, 119 N. W. 1110, 20 L. R. A. (N. S.) 444, 131 Am. St. Rep. 1022; 8 R. C. L. 633; 10 R. C. L. 962.

The claim made by defendant that certain evidence was inadmissible until after proof of a conspiracy had been established is not correct. A conspiracy to defraud is necessarily or usually made up of a series of facts aud circumstances, and it is sufficient if the facts and circumstances shown in evidence are finally connected so as to make a prima facie case of conspiracy. If that is ultimately done, it is then immaterial in what order testimony predicated upon a conspiracy is introduced.

A conspiracy, leading up to the commission of the crime charged need not be established by direct evidence, bub may and generally must be proved by a number of independent acts, conditions, and circumstances. The very existence of a conspiracy is generally a matter of inference deduced from certain acts of the persons accused, done in pursuance of an apparently criminal or unlawful common purpose.

It is not necessary to prove that the conspirators came together and actually agreed to pursue their purpose by common means, one performing one part and another another. If one concurs in a conspiracy, no proof of an agreement to concur is necessary to make him guilty. It is not even necessary that a person, to be criminally liable, should be acquainted with the others engaged in the conspiracy, though to hold one liable as a participant it must be shown that he did some act or made some agreement showing his intention to commit the crime; and one who joins the conspiracy after its formation is liable as a conspirator just as much as those with whom the conspiracy originated. 1 R. C. L. 133; 5 R. C. L. 1088, 1063; section 2104, R. L. 1910; Spies v. People, 122 Ill. 1-12, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320; Robinson v. U. S., 172 Fed. 105, 96 C. C. A. 307; U. S. v. Newton (D. C.) 52 Fed. 275; Hyde v. Shine, 199 U. S. 62, 25 Sup. Ct. 760, 50 L. Ed. 90; Pettibone v. Nichols, 203 U. S. 192, 27 Sup. Ct. 111, 51 L. Ed. 148, 7 Ann. Cas. 1047.

It therefore follows that if J. Dawson Mathews, collusively with G. C. Wisdom and others, placed these worthless time certificates in circulation, and, directly or indirectly, sent certain of them, by express or otherwise, to Wisdom for the purpose of passing them on to innocent purchasers, and both being cognizant of the fraudulent character of the paper, J. Dawson Mathews became criminally liable for the overt acts of Wisdom and any other person entering into the conspiracy in furtherance of the original plan.

Seventh. The defendant insists at great length that the court erred in his instructions to the jury and in his refusal to give the instructions offered by the defendant. To analyze these instructions in detail would be, for the most part, a repetition of what we have heretofore stated in this opinion. We have carefully examined the instructions given by the court, and we hold that, taken as a whole, they fairly state the law applicable to the evidence before the jury. A false pretense may be made either expressly or by implication and the Oklahoma State Bank at Cushing had a right to assume that this time certificate of deposit, or promissory note, or whatever it should have been called, was issued in due course by a legitimate bank or trust company in good faith. Where it is shown, as in this case, that these certificates were worthless, and were ingeniously designed and calculated to mislead and deceive the purchaser, and would deceive a person of ordinary prudence, and the circumstances surrounding the sale were purposely arranged to deceive, the rule of caveat emptor will not apply. 19 Cyc 401-403; State v. McDonald, 59 Kan. 241, 52 Pac. 453; Commonwealth v. Stone, 4 Metc. (Mass.) 43; People v. Luttermoser, 122 Mich. 562, 81 N. W. 565; State v. Southall, 77 Minn. 297, 79 N. W. 1007; 1 McClain, Crim. Law, 674; 11 R. C. L. 838.

Eighth. Complaint is made by the defendant of the alleged errors in the admission of improper testimony, of conduct of counsel for the state, and of side remarks made by one of tbe witnesses, but in the opinion of this court, after a careful examination of the e*|jre record, none of the things so complained of amounts tew^»judicial error.'

The judgment of the trial court is affirmed.

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


source: Caselaw Access Project

author: BESSEY, J.

license: Public Domain

text:
    SAM CHOATE v. STATE.
    No. A-3640.
    Opinion Filed May 16, 1921.

    Rehearing Denied June 13, 1921.
    (197 Pac. 1060.)
    (Syllabus.)
    1. Homicide — Voluntary Intoxication as Reducing Degree of .Crime. Where an unlawful homicide is established, and alleged to have been committed with a premeditated design to effect death, and it appears that the person charged was in such a state of voluntary intoxication as to preclude a premeditated design or intent to take human life, the offense is reduced from murder to manslaughter in the first degree.
    2. Criminal Law — Criminal Responsibility — Effect of Involuntary Intoxication. Where the accused, by fraud, deception, or artifice is misled or imposed upon, and is induced to freely imbibe a medicinal alcoholic preparation, without knowing its properties or narcotic ingredients, resulting in intoxication or temporary insanity, such intoxication would not be “voluntary intoxication,” within the meaning of the law; and if the mental condition was such that the defendant had no knowledge or comprehension of his acts, and was unable to discern right from wrong, he would be, under such circumstances, guilty of no crime.
    :3. Homicide — Murder—Criminal Responsibility of One Intoxicated by Deception. If the mental condition of a defendant charged with murder was the result of involuntary intoxication brought about by the design, fraud, or deception of others, and he was still able to discern right from wrong and adhere to the right and avoid the wrong, the defendant would be guilty of murder or manslaughter, as the case might be, to be determined by other facts, as in .other cases.
    •4. Same — Instructions. Instructions relating to voluntary intoxication, involuntary intoxication, premeditated design, and reasonable doubt, examined and found sufficient.

      5. Trial — Instructions—Definition of Reasonable Doubt. The term “reasonable doubt” is a simple expression that jurors of average intelligence will eompreh>najflfcvithout defining, and unless requested by the defendaiwRPüinarily an instruction defining reasonable doubt need not be given.
    Appeal from District Court, Jackson County; Frank Mathews, Judge.
    Sam Choate was convicted of manslaughter in the first, degree, and he appeals.
    Affirmed.
    S. B. Garrett, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty.. Gen., for the State.
   BESSEY, J.

Sam Choate was on the 23d day of January, 1919, convicted of manslaughter in the first degree, for the killing of Pink Murphy on the 6th day of October, 1918. From the judgment and sentence of the trial court, he appeals to this court.

The evidence discloses that at the time of the homicide-Sam Choate, plaintiff in error, hereinafter called the defend-, ant, was a farmer, 62 years of age, residing about four miles, west of Altus, in Jackson county, Okla., where he had lived, for some time with his family, consisting of a wife and several, children. The deceased, Pink Murphy, lived in the little, town of Duke, in Jackson county. The state’s witnesses, Jim McíQbbon, J. D. Busby, and Arthur Middleton, together-with the deceased, had for some time made a practice of playing cards for money. All of the parties named, were in Altus, on Saturday, the day preceding the homicide. The defend-, ant, Sam Choate, who habitually or at intervals indulged in. the excessive drinking of alcoholic medicines as a beverage,, on this Saturday had drunk considerable quantities of a prep-, aration known as “Beef, Iron and Wine,” and possibly some-alcoholic extract. At that time the defendant had on his-., person over $400 in money. Defendant was more or less under the influence of intoxicants that night, and Busby took 'him to the Wichita rooming house, where they remained all night.

There is evidence to show that some of the witnesses named, and possibly some others, knew that the defendant had this amount of money. On Sunday morning Arthur Middleton told the defendant that he, Pink Murphy, McKibbon, and Busby were going out to where they were the Sunday before to play cards, and that, as they were going near the defendant’s home, he could ride in the car with them. Before leaving town, the defendant and Middleton purchased four bottles of Beef, Iron and Wine, and defendant took two or more drinks from one of the bottles.

A little later Pink Murphy, the deceased, came around with his ear, and he, with the defendant and the other witnesses named, started west towards the defendant’s home. ‘There was more drinking along the road, and the defendant became sick, and vomited. The parties went on some 10 or 12 miles to Turkey creek, passing the road where the defendant should have left the car to go home. They drove the car off of the road some distance, and took a curtain or oil .cloth from the car, carried it across a private wagon bridge into a depression along the creek, spread it on the ground, ;and began playing a game of cards called “stud poker.”

The defendant claimed that, after drinking some more .of the dope along the road with the other parties, he had no recollection of anything that occurred.

The testimony of those engaged in the card game was that after they had played for some time it was agreed that Middleton should drive back to Duke to get more bitters. At this time the defendant was about even in the game, but the deceased had lost a considerable sum of money; that Busby and Murphy were joshing each other, and that Murphy told Busby that he would “knock him in the creek,” meaning that he would win all his money; that Busby said that the whole bunch couldn’t do that. The defendant then told Murphy to “take it back,” and Murphy said that they were* old friends and could say what they pleased to each other, .and that he wouldn’t “take it back.” The defendant said if he didn’t he would kill him; that Murphy was sitting on. the ground next to a tree, with his arms around his knees j. and that the defendant rea.ch.ed over and stabbed Murphy with his knife; that Murphy fell over on his side, and Busby-said, “You have killed the best friend you ever had,” and. that defendant said, “Yes, I intended to do it, but I am sorry for it.”

Middleton went to Duke for a doctor. McKibbon gave* Murphy some water, and the deceased said he didn’t think he was badly hurt. The doctor came and gave the deceased some medicine, placed him in a car, and started to Duke, but he died before they arrived there, and within an hour after* the difficulty occurred.

After the stabbing the defendant went across the creek,, along the bank some hundred yards or more distant, where*, he was later found by a deputy sheriff and Jim McKibbon,. lying on the creek bank near the water’s edge, apparently in. a drunken stupor. There was an open pocket knife by his. side, and about $350 in bills, some in a roll and some scattered around between his legs. They also found a little piece of' tobacco lying there. After rousing the defendant and getting him to stand up, he said to the deputy sheriff, “Are you. going to shoot me?” The defendant was helped up the* bank, from where he walked to the ear without assistance, on the way they had to cross a fence, and defendant crawled, through without assistance, and came up to the car and shook hands with old man Eckles.

No questions were asked the defendant by any of the parties, or any statements made, indicating whether Pink Murphy was dead or alive, and after they had gotten into the car and started towards town, the defendant asked the deputy if the fellow was dead, and was told that he was not. Defendant said he was glad he was not dead, and cried about it; then talked on in a rambling way. Presently he asked the deputy if he got his money and his knife, and, when told that he had, slapped him on the shoulder and said, “You’re all right, kid.” Further on, the defendant said they had taken him out there to rob him, but that they had not done it. There was more rambling conversation that need not be recited here.

The sheriff testified that, shortly after the defendant was placed in jail, he heard the defendant state that he was standing up a few steps from where they were, and that’ they called him up there and said, “You have killed him,” and then he said he walked off and holloaed for help.

The defendant claimed that he had no recollection of playing cards, or of any difficulty with the deceased, and knew nothing about the knife wound that caused his death.

The theory of the defense was that the defendant did not strike the fatal blow, or any blow; or, that if he did strike the blow, it was in a drunken effort to keep the gamblers who had him in charge from taking his money; that, by reason of his having drunk a great quantity of alcoholic medicine, he was totally unconscious of any act.

It is here urged that the homicide was excusable, for the reason that the defendant was so beastly drunk at the time he took the life of Pink Murphy that he was unable to form an intent or design to take his life, or that the wound was inflicted by some other person, and that they took advantage of his drunken, maudlin condition for the purpose of holding him responsible for the act of some other person in the party; that the intoxication was not voluntary, but was brought on by the artifice or connivance of the other members of the party for the purpose of enabling them to get his money in a poker game.

Section 2095, Rev. Laws 1910, provides as follows:

“N® act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition.”

Section 2316, Rev. Laws 1910, is as follows:

“Homicide committed with a design to effect death is not the less murder because the perpetrator was in a state of anger or voluntary intoxication at the time.”

It has been held by this court that voluntary intoxication may be shown in mitigation of the offense, when one is charged with murder, where the person is in such a state of intoxication as to preclude a premeditated design or intent to take human life. In such a ease the crime is not murder, but manslaughter in the first degree. Updike v. State, 9 Okla. Cr. 124, 130 Pac. 1107; Cheadle v. State, 11 Okla. Cr. 566, 149 Pac. 919, L. R. A. 1915E, 1031; McCarter v. State, 14 Okla. Cr. 305, 170 Pac. 712; Tubby v. State, 15 Okla. Cr. 496, 178 Pac. 491.

The court instructed the jury upon the question of voluntary intoxication, as affecting a premeditated design to kill, as follows:

8. When an unlawful killing is established, and alleged to have been committed with a premeditated design to effect death, the condition of the mind of the party doing the killing at the time of and just prior to the killing is an important consideration in determining whether or not murder has been committed with a premeditated design to effect death. The important questions for the jury to determine are: Do tbe facts and circumstances in tbe case, at tbe time of tbe killing and before that time, having connection with or relating to it, establish beyond a reasonable doubt a formed design in tbe mind of the person doing the killing to take the life of the person slain? If they do, the killing will be murder.
9. You are charged that neither intoxication nor temporary insanity of the mind produced by the voluntary recent use of intoxicating liquors constitutes an excuse for the commission of a crime, the penal statutes upon that subject being as follows: “Homicide committed with a design to effect death is not the less murder because the perpetrator was in a state of anger or voluntary intoxication at the time.”
#**#**##
However, in a case where the defendant is accused of murder, as in the case before you, evidence of such intoxication or temporary insanity of the mind produced by the recent voluntary use of ardent spirits may be received by you to determine whether or not the defendant’s mind at the time of the difficulty was in such state or condition as to prevent him from deliberately forming the specific intent to take life.
10. If you believe that at the time of the alleged commission of the act with which the defendant is charged, and for which he is now on trial before you, he was so intoxicated or temporarily insane from the recent voluntary use of intoxicating liquors as to render him incapable of forming a premeditated design to take the life of the deceased and entertaining malice, then you are charged that it would afford no excuse for the commission of the act charged against him, if the act was otherwise criminal, but such intoxication or temporary insanity produced by the voluntary recent use of intoxicating spirits, if you find there was such intoxication or insanity produced by the voluntary recent use of intoxicating spirits; and in that case, should you so find, should you find the defendant guilty of the offense charged against him, then your verdict should be manslaughter in the first degree.
12. * * * If you believe from the evidence beyond a reasonable doubt that the defendant, in Jackson county, state of Oklahoma, on or about the 6th day of October, 1918, did unlawfully stab and cut, and thereby cause the death of the deceased, but that said act of killing was perpetrated without a design to effect the death of the deceased, and in a heat of passion or in a state of voluntary intoxication, and by means of a dangerous weapon, then you will find the defendant guilty of manslaughter in the first degree, and so say by your verdict.
13. * * # But the court further instructs you that, even though you may find, or have a reasonable doubt thereof, that the defendant, prior to the fatal difficulty, had been induced by the deceased or other persons to become intoxicated, or there had been administered to him a drug or narcotic, but, notwithstanding this fact, should you find beyond a reasonable doubt that at the time of the killing the defendant’s mind was in such a condition that he had knowledge of the nature and character of his act; that he knew the same was wrong and criminal, and would subject him to punishment and that he had power left to resist said act of killing; and under such conditions you should find beyond a reasonable doubt that the defendant stabbed and killed the deceased, then you should find him guilty of murder or manslaughter in the first degree, as you may determine.

The quoted parts of the instructions given, together with the instructions considered as a whole, fairly stated the rule applicable to premeditated design in connection with voluntary intoxication.

Under the evidence in this case, the question as to whether or not the fatal difficulty was induced or brought about by design, fraud, or artifice of the deceased or others, causing the defendant to become unconscious by reason of medicinal alcoholic liquors, drugs, or narcotics, was fairly submitted to the jury under the following instructions:

9. * * * But you are further instructed that, where a person becomes intoxicated from the drinking of alcoholic liquors, or by the use of drugs or other narcotics is rendered devoid of reason or understanding, and sucb person bas been induced to take sucb liquors, drugs, or narcotics by the fraud or artifice of some other person, then in sucb event it would not be voluntary intoxication in the eyes of the law.
By “fraud or artifice,” as here used, is meant some scheme or device by which the person is misled or imposed upon, and is induced to take said liquor or drugs without knowing that he is taking it, or without knowing its ingredients. But even though you may find the alcoholic liquor was furnished by other persons and offered to defendant, if he drank the same without being misled as to its contents, and thereby became intoxicated, then under the law his intoxication would be deemed voluntary, and would afford no defense to a crime committed' while in such condition.
13. You are further instructed that, should you find, or even have a reasonable doubt thereon, that the defendant, at the time of the killing, was intoxicated, or that his mind was bereft of reason by the recent use of some drug or narcotic, but that his intoxication or aforesaid mental condition had been produced by the artifice or fraud of the deceased or other persons, and should you further find, or have a reasonable doubt thereon, that said intoxication or said mental condition brought about by the use of drugs or narcotics administered as aforesaid, was to such an extent as to absolutely destroy the reason of the defendant for the time being, as far as his knowledge of his acts is concerned, that is, placed the defendant in such mental condition that he had no knowledge of the nature or character of his acts, and was not able to discern and know whether the same was right or wrong, and adhere to the right and avoid the wrong, then in such event, if the defendant stabbed and killed the deceased, you should acquit him. * * *

Upon the question of reasonable doubt, the court instructed the jury as follows:

15. If, from the evidence, you are satisfied beyond a reasonable doubt that the defendant is guilty of murder or manslaughter in the first degree, but have a reasonable doubt as to which of said offenses he is guilty of, then you must give him the benefit of the doubt, and not find him guilty of a higher offense than manslaughter in the first degree.

In instruction No. 19, the court defined “reasonable doubt” in part as follows:

By the term “reasonable doubt,” however, is not meant a mere misgiving of the imagination, a fanciful conjecture, or a suggestion of sympathy for the defendant, but a reasonable doubt is an actual doubt, arising from the evidence or want of evidence in the case. * * *

If, however, after considering, comparing, and weighing all the evidence in the case, your minds are left in the condition that you cannot say that you feel an abiding conviction to a moral certainty of the defendant’s guilt, then you would have a reasonable doubt, and it would be your duty to acquit the defendant.

It is often difficult for a court to understandingly frame a clear, concise definition of reasonable doubt, as applied to the evidence in any particular case. The term “reasonable doubt” is a simple expression that a juror of average intelligence will usually comprehend without defining. Considering the instructions quoted relating to reasonable doubt, in connection with the other instructions touching upon that question, we think that issue was fairly submitted to the jury.

There was a great deal of testimony in this case indicating that the defendant was not so voluntarily "(or involuntarily) intoxicated as to destroy his sense of right and wrong. For some time the defendant had been engaged in this card game in such a way as to indicate that his mentality was not greatly impaired by the use of intoxicants, and that question was fairly submitted to the jury, and their finding will not be disturbed.

The judgment of the trial court is affirmed.

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


author: PER CURIAM.

text:
    Ex parte CY DENNISON.
    No. A-3989.
    Opinion Filed June 14, 1921.
    (198 Pac. 514.)
    Application by Cy Dennison for writ of habeas corpus to be admitted' to bail.
    Writ denied, and bail refused.
    Joe S. Eaton and E. M. Carter, for petitioner.
    S. P. Freeling, Atty. Gen., W. C. Hall, Asst. Atty. Gen., and James Heflin, Co. Atty., for the State.
   PER CURIAM.

In this proceeding petitioner, Cy Den-nison, has presented to this court a verified petition, wherein he alleges that he is unlawfully imprisoned and restrained of his liberty in the county jail of Okmulgee county, Okla., by Lon Kuhn, sheriff of said county; that the cause of his restraint is that he has been committed to said county jail by an examining magistrate upon a preliminary examination held by him at Okmulgee, Okla., on the 26th day of May, 1921, upon information or complaint charging petitioner with the murder of one Robert Burden on the 16th day of May, 1921; that thereafter, on the 27th day of May, 1921, the county attorney of Okmulgee county, Okla., filed in the superior court of Okmulgee county an information purporting to charge this petitioner, together with Roy Massingale and Calvin Shipman, with the crime of murder hereinbefore referred to.

Petitioner avers that he is not guilty of the crime of murder as charged in the information, and that upon the evidence introduced at the preliminary examination, together with affidavits filed in support of the petition, it is shown that the proof of his guilt of the crime of murder is not evident nor the presumption great, and that therefore petitioner is entitled to be let to bail.

It is also shown that petitioner applied to the district court of Okmulgee county to be admitted to bail, and that upon a hearing of his said application on May 31, 1921, bail was denied by said court.

The application is submitted on a transcript of the evidence taken before the justice of the peace at the preliminary hearing, together with further evidence taken before the district judge of Okmulgee county, and also upon affidavits filed in this court.

The testimony for the state upon the preliminary examination, and on the application for bail before the district court, shows that on the night of the 16th of May, 1921, Bobert Burden, a peace officer, was shot and killed at a time he was attempting to arrest two men who had held up and robbed, in the city of Okmulgee, one J. R. Harrison and Harrison’s wife of about $5,000 worth of diamonds, and at the time of the attempted arrest the robbers were apprehended fleeing from the immediate scene of the robbery with the spoils upon their persons and before any division of the same had been made between them. The evidence discloses that the officers informed the robbers that they were officers, and of their purpose to arrest them, upon which the robbers immediately proceeded to shoot and kill the said Burden and also wounded his companion officer by the name of Spess. There is evidence on the part of the state which tends to establish a conspiracy between the petitioner and his codefendants, Shipman and Massingale, to effect this particular robbery, with instructions by petitioner to the other two to shoot to kill if apprehended.

In rebuttal of this evidence, the petitioner offers in this court an affidavit by his wife and also one by a lady friend of hers to the effect that, on the evening it is alleged by some of the state’s witnesses that defendant had planned the said robbery, defendant was seen at his place of business during different intervals from shortly after supper until about midnight. Also, there are one or two affidavits to the effect that the general reputation of one of the state’s witnesses for truth and veracity is not good. The petitioner did not take the witness stand either in his preliminary examination or before the district court or in this court.

The settled rule of this court is that upon an application for bail by writ of habeas corpus, after commitment fora capital offense by an examining magistrate, the burden is., upon petitioner to show facts sufficient to entitle him to-' bail when these facts do not appear from the evidence adduced on the part of the prosecution, and if, upon a consideration-, of all the evidence introduced on the application for bail, the-court is of the opinion that it is insufficient to create a reasonable doubt of petitioner’s guilt of a capital offense, bail will be refused. In re Kerriel, 12 Okla. Cr. 386, 157 Pac. 369; Ex. parte Butler, 15 Okla. Cr. 111, 175 Pac. 132.

The court has carefully examined the record before us,, and without entering into a discussion of the incriminating-facts and circumstances, we are of the opinion, after a careful consideration of all the evidence presented in support of the application, that the petitioner is not entitled to be admitted*, to bail as a matter of legal right.

It is therefore considered and adjudged that the writ he.denied and bail refused.


text:
    Ex parte DEWEY DENHAM.
    No. A-3998.
    Opinion Filed June 14, 1921.
    (198 Pac. 515.)
    Application by Dewey Denham for habeas corpus to be admitted to bail.
    Writ denied and bail refused. '

      Welch & Welch, for petitioner.
    ' S. P. Freeling, Atty. Gen., W. C. Hall, Asst. Atty. Gen., and R. L. Evans, for respondent.
   PER CURIAM.

In this proceeding petitioner, Dewey Denham, by his counsel, has presented to this court a verified petition wherein he alleges that he is unlawfully imprisoned' •and restrained of his liberty in the county jail of Pushmataha «county by N. F. Kirkpatrick, sheriff of said county; that the «cause of his restraint is that he has been committed to said ■county jail by one George R. Childers, justice of the peace of Antlers township, said county, upon a preliminary examination held by him on the 24th day of May, 1921, upon a charge ■of having murdered in said county on the 15th day of May, 1921, one I. J. Bilbrey; and petitioner avers that said restraint is illegal and unauthorized and that petitioner is entitled to bail and to be discharged from said restraint upon bail bond for the reason that the proof of petitioner’s guilt of said murder is not evident nor the presumption thereof great.

Petitioner further alleges that he has heretofore made application for bail to the district judge of Pushmataha county, and that bail was denied by said judge.

As evidence that the proof of petitioner’s guilt of said murder is not evident nor the presumption thereof great, petitioner presents in support of his application all the evidence taken at the preliminary examination and before the district judge, and also some affidavits.

The testimony discloses that in the evening of Sunday, the 15th day of May, 1921, about dark, petitioner killed and murdered one I. J. Bilbrey by shooting him in the back part of the head with a shotgun; that the shooting occurred on a public highway near the town of Cloudy, in Pushmataha county, and close to the home of one Henry McDaniel; that deceased was a man about 60 years of age,'and defendant about 19 years of age. The evidence on the part of the state and also the evidence of one Jess Musgraves, who was with the defendant at the time, supports the allegations of the preliminary complaint or information.

In the hearing before the district judge, defendant took the witness stand, and testified that. the killing was in defense of his person.

The settled rule of this court is that upon ah application for bail by writ of habeas corpus, after commitment for a capital offense by an examining magistrate, the burden is upon petitioner to show facts sufficient to entitle him to bail when these facts do not appear from the evidence adduced on the part of the prosecution, and if, upon a consideration of all the evidence introduced on the application for bail, the court is of the opinion that it is insufficient to create a reasonable doubt of petitioner’s guilt of a capital offense, bail will be refused. In re Kerriel, 12 Okla. Cr. 386, 157 Pac. 369; Ex parte Butler, 15 Okla. Cr. 111, 175 Pac. 132; Ex parte Dennison (No. A-3989) 19 Okla. Cr. 179, 198 Pac. 514.

We have examined the entire record before us, and without entering into a discussion of the facts, and without comment upon the sufficiency of the evidence to establish the allegations of the information, for the reason that such discussion and comment might result to the prejudice of defendant upon the trial, we deem it sufficient to say that the court is of opinion that petitioner is not entitled to be admitted to bail as a matter of legal right.

It is therefore considered and adjudged that th,e writ be denied and bail refused.


author: .BESSEY, J.

text:
    STATE v. CLINT SMITH.
    No. A-2497.
    Opinion Filed June 16, 1921.
    (198 Pac. 879.)
    (Syllabus.)
    •Sunday — Conducting Moving Picture Show on Sunday as “Servile Labor”. Ordinarily, the selling of admission tickets and conducting on Sunday in an orderly manner a moving picture show is not “servile labor,” and not prohibited within the meaning mi section 2404, Rev. Laws 1910, and the first subdivision of ‘section 2405, as amended by Laws 1913, c. 204.
    Appeal from County Court, Craig County; E. M. Probasco, -Judge.
    Clint Smith was informed against for Sabbath breaking, iby selling tickets for a moving picture performance. De-isnurrer to the information was sustained, and the State appeals.
    Affirmed, and cause dismissed.
    R. McMillan, Asst. Atty. Gen., for the State.
    W. P. Thompson, for defendant in error.
    A. 0. Harrison, amicus curiae.
   .BESSEY, J.

In this case an information was filed in the «aunty court of Craig county, charging that Clint Smith, on the 17th day of March, 1915, committed the crime of Sabbath breaking, in that he willfully and unlawfully performed cer.tain servile labor, to wit, sold tickets at and for a certain moving picture show and performance on the first day of the week, commonly called Sunday; said servile labor aforesaid not being a work of necessity or charity. To this information the defendant filed a demurrer, alleging three grounds, viz.: .First, that the allegations in said information do not state .a public offense against the laws of the state of Oklahoma; ¡second, that the facts stated in said information are not sufficient to charge the defendant of any offense against the laws of the state of Oklahoma; third, that the facts set forth in said information do not constitute “servile labor,” as contemplated by the laws of the state of Oklahoma. On the 20th day of April, the court sustained the demurrer, from which ruling the state appeals.

The common law, adopted by the states, does not prohibit citizens from pursuing ordinary labor on Sunday nor from engaging in or conducting innocent amusements. If it is unlawful in this state to operate a moving picture show on. Sunday, it must be so by reason of the express or necessarily-implied provisions of our Sunday statute. City of Marengo v. Rowland, 263 Ill. 531, 105 N. E. 285, Ann. Cas. 1915C, 198;, 25 R. C. L. 1414.

In approaching the question of whether or not the conducting of a moving picture entertainment on Sunday is a violation of our Sunday statute it becomes necessary' to determine the meaning and legislative intent of a number of words and terms used in the statute, indicative of what is, prohibited. In analyzing our statutes on this subject we find that the judicial decisions of many of the other states touching-on the violation of Sunday laws are of little aid in construing our Sunday statutes, for the reason that the language used and the manifest legislative intent in so many states differ from our own. In most of the states in recent years the Sunday statutes have been frequently modified to meet the exigencies of modem conditions. Our statutes on this subject at the present time are as follows:

Section 2404, Rev. Laws 1910: “The first day of the week being by very general consent set apart for rest and religious uses, the law forbids to be done on that day certain, acts deemed useless and serious interruptions of the repose and religious liberty of the community. Any violation of this; prohibition is Sabbath breaking.”

Section 2405 (as amended): “The following are acts forbidden to be done on the first day of the week, the doing of.' any of which is Sabbath breaking:

“First. Servile labor, except works of necessity or charity.
“Second. Trades, manufactures and mechanical employment.
“Third. All shooting, horse racing or gaming.
“Fourth. All manner of public selling, or offering, or exposing for sale publicly, of any commodities, except that meats, bread, and fish may be sold at any time "before nine o’clock in the morning, and except that food and drink may be sold to be eaten and drank upon the premises where sold, and drugs, medicines, milk, ice and surgical appliances and burial supplies may be sold at any time of the day” Laws 1913, c. 204.
“Sec. 2406. It is sufficient defense in proceedings for servile labor on the first day of the week, to show that the accused uniformly keeps another day of the week as holy time, and does not labor upon that day, and that the labor complained of was done in such manner as not to interrupt or disturb other persons in observing the first day of the week as holy time.”

Section 2404, supra, has never been judicially construed in a case of this character. From the reading of this section it seems to be a preliminary declaration of a policy to become effective in the manner pointed out in the other sections of the statutes following. It was so construed, where an order of the corporation commission was made, compelling a telephone exchange to remain open on Sunday. Twin Valley Tel. Co. v. Mitchell, 27 Okla. 388, 113 Pac. 914, 38 L. R. A. (N. S.) 235, Ann. Cas. 1912C, 582.

Passing on, then, to the more definite prohibitions contained in section 2405, we find, excepting works of necessity or .charity, all persons are forbidden from pursuing on Sunday: First, servile labor; second, trades; third, manufacturing or mechanical employment.

At the outset we must determine whether a moving picture exhibition on Sunday comes within the saving clause of the statute, “excepting works of necessity or charity.” It is too clear for argument that ordinarily a moving picture show is not a work of charity. Can it, under any circumstances, be a work of necessity?

“Necessity” is an elastic term. It does not mean that which, is indispensable, but it means something more than that which is merely useful or advisable or desirable. No doubt a thing which is merely useful or desirable to the residents of a town might be a necessity to the residents of a great city. So, also, that which was a luxury a century ago may have become a necessity now. There is always, however, a tendency which should not be sanctioned to claim accustomed luxuries as necessities, falling within the exception of the law. State v. James, 81 S. C. 197, 62 S. E. 214, 18 L. R. A. (N. S.) 617, 128 Am. St. Rep. 902, 16 Ann. Cas. 277; 1 Amer. Rul. Cases, 777.

Prom the great number of these shows now being operated in the various towns and cities of the state it is fair to assume that they are approved as desirable by the multitudes that patronize them, but we cannot say that they are ordinarily necessary, in the sense that it is sometimes necessary to operate trains on Sunday, or to deliver a Sunday newspaper, or to operate an automobile on Sunday for the pleasure or for the health and comfort of the family, or to operate a telephone exchange.

It may be argued that in a mining camp, where men toil all week underground, or at a manufacturing plant operated day and night, where there no other means of innocent entertainment or recreation, moving picture shows might be a necessity. Doubtless, under such circumstances such entertainments are desirable to the great mass of toilers; but it has been held that in order to break the monotony of army life such exhibitions are not a necessity at a great army camp. Rosenbaum v. State, 131 Ark. 251, 199 S. W. 388, L. R. A. 1918B, 1109.

Moving picture exhibitions are a form of amusement not in existence at the time of the enactment of our original Sunday law, and the amendment of May 17, 1913, makes no reference to this or like forms of amusement. The fact, however, that some form of amusement, sport, business, or occupation has sprung into existence since the passage of the law would make no difference, if they came within the plain provisions of the spirit and letter of the statute. 25 R. C. L. 1427.

Moving picture shows are, or should be, instructive as well as entertaining, but the fact that many people can more conveniently attend them on Sunday does not bring them within the exception of being a necessity. It makes no difference whether this court thinks that picture shows on Sunday are in the main desirable, or that a majority of the people so consider them; it is for the Legislature to say whether or not they shall operate on Sunday. Capital Theatre Co. v. Com., 178 Ky. 780, 199 S. W. 1076. Interpolating a personal view of the writer, it would be well to suppress many of them that depict acts of crime and sexual suggestions on week days as well as on Sunday. This class of exhibitions has been much criticized by persons who, at the same time, encourage them by their patronage.

We hold, therefore, that ordinarily a moving picture show given on Sunday does not come within the exception of-our statute as being a work of necessity or charity.

We have, in some measure, a statutory guide in interpreting and defining words and phrases used in a statute. Section 2914, Rev. Laws 1910, provides:

“Words used in any statute are to be understood in their ordinary sense, except when a contrary intention plainly appears. ”

With this rule of interpretation in mind, we will next endeavor to ascertain the meaning of “servile labor,” and whether or not the conducting of a moving picture show is servile labor. Labor, in its usual sense, may be defined as “physical or mental toil; bodily or intellectual exertion, done wholly or partly for a purpose other than the pleasure derived from its performance.” “Servile labor, applied to modern conditions, pertains to physical work; labor requiring bodily rather than mental effort; menial labor.” Webster’s Int. Diet. 1927; Standard Dictionary. According to this definition, a person who cranked his Ford on Sunday would be engaged in servile labor, though it might be a work of necessity or charity; while a bookkeeper who on Sunday pores over his books, invoices and sales slips, in order to make the books balance for the previous week, would not be engaged in servile labor. The statutes of most states use the words “labor,” “work and labor,” or “usual labor,” without the qualifying adjective “servile,” or any word of like import. This may seem like a captious distinction, but applying the statutory rule of interpretation of words, quoted above, and from aught that we can comprehend from the language of the act as a whole, the Legislature must have intended to make a distinction between manual and mental labor, otherwise they would have dispensed with the word “servile” and prohibited all labor, both mental and physical. This court has no right by judicial construction to amend a statute, and in this case say that the word “servile” means nothing, or to give this adjective a strained or fanciful interpretation.

So far as we have been able to find, of the states having a Sunday law in the same language as our statutevas in the Dakotas and New York, only New York has defined “servile labor,” where it has been judicially construed a number of . times. And since we have adopted what is known as the Fields Criminal Code, of which our Sunday law is a part, originating in the state of New York and written by a legislative commission presided over by David Dudley Fields, which completed its work in 1865, it would seem that the judicial construction placed on words and phrases contained, in this Code by the courts of New York, the state of its origin, should be persuasive, if not binding, on the courts of this state; and especially so when none of the other states adopting this Code have given it a'’different construction. Ex parte Bowes, 8 Okla. Cr. 201, 127 Pac. 20.

In the case of Campbell v. Inter. Ins. Ass’n., 17 N. Y. Sup. Ct. 316, it was held that “servile labor” meant one thing, and that “working,” without that adjective, meant another; that the latter was a comprehensive word, intended to cover the efforts of both mind and body, while the former related to physical labor of a character more or less menial.

In the case of Watts v. Van Ness, 1 Hill (N. Y.) 76, it was held that the usual occupation of a clerk in an attorney’s office was a species of servile labor, and constituted working, for which, when done on Sunday, he could recover no wages. It will be observed that the New York statute, at the time this decision was rendered, differed from ours, in that it contained both expressions, “servile labor” and “working,” while ours contains the former only.

Where a person contracted to take lessons on Sunday to perfect himself in a special art of photography, it was urged that such services were not of a servile nature. The court pointed out that the General Assembly had amended the law (Session Laws N. Y. 1883, c. 358) so as to include all labor, and inferentially held that if it were not for such amendment the defense for nonpayment for services would be good (Bilordeaux v. Lithographing Co., 9 N. Y. Supp. 507).

In another New York case it was held that the loading of horses for shipment onto a sloop from the dock on Sunday was “servile” labor, and under the circumstances in that case not necessary, because the loading could as well have been postponed until the next day. Merritt v. Earle, 29 N. Y. 120, 86 Am. Dec. 292.

These New York cases are cited to show that there was a well-recognized distinction between “servile labor” and mere work or labor, and that this qualifying adjective had a fixed, settled meaning in the state from which this part of our Code was derived. Later the word “servile” was stricken from the New York statute, and the Sunday law there has since been amended in many other particulars. These changes must be kept in mind in analyzing the later New York decisions construing the Sunday statutes of that state, modified by amendments in recent years.

In Connecticut it was provided by statute that on Thanksgiving Day all persons should abstain from all kinds of “servile labor.” Another portion of the statute provided:

“That no person on the Sabbath shall do any ‘secular business,’ works of necessity or mercy excepted.”

Upon the question of the validity of civil process served on Thanksgiving Day, the court held that the words “servile” and “secular” were practically synonymous. The question at issue, having reference to Thanksgiving Day, and no4 pertaining to a violation of the Sunday law, the defining of the word “secular” was dictum and unnecessary, because that word applied alone to Sabbath breaking. In this case it was held, by a divided court', that court process served1 on Thanksgiving Day was void. Gladwin v. Lewis, 6 Conn. 49, 16 Am. Dec. 33.

The word “secular,” as applied to labor and applicable to this ease, is defined in Webster’s International Dictionary as “labor not of a religious, spiritual or holy character; relating to temporal, as distinguished from religious interests.” The Standard Dictionary defines “secular” as “pertaining to temporal things of this life.”

As has been pointed out, the New York courts have held that the word “servile” has a distinct meaning, so intended by the lawmakers, while the Connecticut court practically held that it meant nothing; the term “secular business” appearing in one statute being equivalent to the term “servile labor” appearing in another section of the statute. We may well inquire here, if this adjective had no particular significance, why change the language of the statute by judicial construction by transposition of adjectives?

Our court, in the case of Krieger v. State, 12 Okla. Cr. 566, 160 Pac. 36, seems to have followed the Connecticut case, and this too in the face of the fact that our statutes say that the words shall be given their ordinary meaning, unless a contrary purpose plainly appears; and in the face of the fact that the parent state from which we borrowed this law had given it a contrary, and to our mind more rational construction. We think, and standard dictionaries indicate, that there is a marked difference between the meanings of the words “servile” and “secular,” and that the lawmakers must have had that difference in mind when they qualified the word “labor” by the word “servile.” For instance, it may have been the intention of the framers of this statute to prohibit a blacksmith from working on Sunday, for the reason that the pounding of his anvil and the keeping of his shop open on Sunday would disturb others who wished to keep Sunday as a holy day; the blacksmith would be engaged in servile labor. Likewise, on Sunday a bookkeeper, a judge, a clergyman, or a lawyer might clean the spark plugs of his automobile, pull weeds from his garden, or' cut the grass with his lawnmower; this, too, would be servile labor. On the other hand, if a bookkeeper, a judge, a clergyman, or a lawyer should go to his office and close his door and engage in mental labor in such a way as not to disturb others in the quiet enjoyment of their Sabbath, this would not be servile labor within the meaning of the statute.

Sometimes we can more easily determine what a term means by ascertaining what it does not mean. An abstractor of titles, a draftsman, an architect, a building contractor, a railroad conductor, a dentist, a photographer, superintendents or managers of shops we think would not ordinarily be engaged in manual or servile labor. Work done in the professions and fine arts is not usually classified as manual or menial labor. 5 Words & Phrases, First Series, p. 4343. 24 Cyc. 809; 16 R. C. L. 413; City of New Orleans v. Robira, 42 La. Ann. 1098, 8 South. 402, 11 L. R. A. 141.

A Sunday law should not be a religious or an ecclesiastical act to promote religious doctrine, or religious rites or ceremonies. Ours is purely a civil government, which guarantees to every person the right to espouse and practice any religious creed he may choose, or to espouse and practice none. Good morals are of course encouraged, and enter into the foundation and superstructure of our free institutions.

The ease of Krieger v. State, supra, was a case where a member of the religious sect known as Seventh Day Adventists was prosecuted for keeping his store open on Sunday. It was shown that the defendant, in keeping with the tenets of his faith, uniformly kept Saturday, the seventh day of the week, as a day of rest and holy time; that he performed no labor and did no business on that day; and that he kept his store open on Sunday in a quiet and peaceable manner. It was held in that case that because of his religious belief that Saturday was the day ordained by God as a day of rest it came within the provisions of our statute (section 2406, E. L. 1910) exempting him from punishment for such servile labor on Sunday. There was nothing in this case calling for a definition of servile labor, as distinguished from or synonymous with secular labor, because in either case the defendant was exempt from punishment by the plain, explicit provisions of the statute, providing:

“It is a sufficient defense in proceedings for servile labor on the first day of the week, to show that the accused uniformly keeps another day of the week as holy time, and does not labor on that day.”

In view of the fact that the finding of the court in this case that the words “servile labor” and “secular labor” are synonymous was, under the circumstances in the case, unnecessary, such finding was in a sense dictum, and as such is not binding as a precedent. A judicial decision, in order to be a precedent and guide in determining issues in subsequent cases, involves only such points as are actually in point in the case decided, and not what is said by the court or some judge on points not necessarily involved. Such expressions, being-mere obiter dicta, should not be considered as precedents. 7 R. C. L. 1003, § 31.

In the Connecticut case, supra, the question was on the construction of the validity of civil process issued and served on Thanksgiving Day, and construction of the meaning of the words used in the Sunday law was not involved. In the Oklahoma case the decision hinged on the fact that the defendant ivas a Seventh Day Adventist, and came within the exception of section 2406, supra, exempting persons who keep some other time as holy day from the penalties imposed for working on Sunday. The-decision in that case did not involve an interpretation of the words “servile” and “secular,” because the defendant was plainly, under the testimony, within the exception granted to persons who habitually keep another day as holy time.

For the reasons stated we think the findings of the courts in these two cases that “servile” and “secular” are synonymous are not supported by the best reason and authority, and this court will not be bound to follow them as an established rule of judicial construction in this or similar cases.

At the time our Legislature amended the Sunday law of this state (act of May 17, 1913), adding to the prohibitions then existing, horse racing, hunting, and gaming, and providing that the public selling of commodities should be restricted, moving picture shows were flourishing in all parts of the state, and in many places moving picture exhibitions, were being held on Sunday. We think it is fair to assume-that if it was the desire of the Legislature to prohibit such exhibitions on Sunday it would have then said so in specific-terms. Penal statutes cannot be enlarged by implication! or extended by inference. This court is without power to amend or repeal a general statutory provision, although the-court may disapprove of some of its provisions or omissions. White v. State, 4 Okla. Cr. 163, 111 Pac. 1018, City of Shawnee v. Landon, 3 Okla. Cr. 440, 106 Pac. 652.

This case has been well and ably briefed by the Attorney General for the state, assisted by counsel for the state in other cases, amicus curiae. In a number of cases pending in this-court the defendants are charged with violating the Sabbath day by performing servile labor in operating moving picture exhibitions on Sunday. In a number of other cases it is charged that such defendants are guilty of selling a commodity to the public, to wit, a privilege, in violation of our Sunday law. In still others it has been urged by the Attorney General that the conducting of such exhibitions might be a trade, within the meaning of the second subdivision of section 2405, supra. In this case the construction of the term “servile labor” alone is involved, and a construction of the other terms mentioned must be deferred until a ease is reached involving these other terms.

Counsel for the state assume, at the beginning, that the words “servile labor” are obsolete and meaningless, and that the word “labor”, without-the qualifying adjective, should be read into the statute, or that possibly the words “secular labor” should be substituted. This conclusion was in a measure justified by reason of the expression of the court in the decision in the Erieger Case, supra. As before stated, however, this declaration cannot stand in the face of sound reason and established judicial construction. Under the conditions here this court has no right to legislate words out of the statute, or to substitute other words that may seem more appropriate, and especially is this the case where the Legislature itself has recently revised the statute.

Our own court, in the case of Twin Valley Telephone Co. v. Mitchell, 27 Okla. 388, 113 Pac. 914, 38 L. R. A. (N. S.) 235, Ann. Cas. 1912C, 582, held that the girl at the switchboard in a rural telephone exchange must remain on duty on the Sabbath, during such fixed and reasonable hours as will give reasonable telephone service to subscribers. It would seem that the work at a telephone switchboard would be more exacting and fatiguing than to sit in a booth at the entrance to a moving picture show and sell tickets. Neither class of work, in our judgment, is of a menial or servile character. It may be argued that rural telephone service is a necessity. Possibly so; in many cases it is at least desirable. Yet in many communities they have no such service, and in others none on Sunday. In that sense it is not a “necessity.”

We pass now to a brief analysis of the decisions chiefly relied upon by the state. In the case of Quarles v. State, 55 Ark. 10, 17 S. W. 269, 14 L. R. A. 192, cited in the briefi for the state, it was held that the managing of a theatre and selling tickets therefor was in violation of a statute prohibiting all labor on Sunday, excepting the customary household duties of daily necessity, comfort, or charity. It will be seen that the language and apparent legislative purpose of this statute differed materially from ours. In the case of City of Topeka v. Crawford, 78 Kan. 583, 96 Pac. 862, 17 L. R. A. (N. S.) 1157, 16 Ann. Cas. 403, involving a statute similar to the one last mentioned, prohibiting all kinds of labor on Sunday, it was likewise held that the opening, managing, and selling theatre tickets is “labor” within the meaning of the statute.

In the case of People v. Joyce, 174 App. Div. 574, 161 N. Y. Supp. 771, construing a statute prohibiting hunting, fishing, playing cards, horse racing, gaming, or other public sports, exercises, or shows, the court held that the prohibition included ordinary picture shows.

The statutes of Washington specifically prohibit the' operation of playhouses and theatres on Sunday. The decisions cited from that state hold that the prohibition covers moving picture shows.

In the case of People ex rel. Moffatt v. Zimmerman, 48 Misc. Rep. 203, 95 N. Y. Supp. 136, at a time when the New York statute contained the words “servile labor,” it was held that selling groceries on Sunday was servile labor, and a violation of the Sunday statute as it then existed.

The references made in the briefs of ancient Biblical, Babylonian, and Chaldaie history and philosophy, showing •the origin and early evolution of the Sabbath as a day of rest, recreation, and religious observances, may be passed here as being more properly a subject for the consideration of legislators, political economists, priests, and clergymen. It appears from Biblical writings that when onr Savior was here on earth there were 39 kinds of labor prohibited by Jewish law, and when the Scribes and Pharisees sought to enforce one of these provisions by arresting some of the-Lord’s disciples for gathering corn on the Sabbath day to-appease their hunger, the Master then announced the doctrine that the Sabbath was ordained for man, and not man for the Sabbath. Matt, xii, 1-14.

We assume that it was in this spirit and for this purpose that our lawmakers made the declaration contained in section 2404, supra, forbidding the doing of useless acts that might seriously interrupt the repose and religious liberty of the community, and then in the following sections more definitely stated the particular acts forbidden. We assume that' all other acts not within the purview of the statute would! not be considered a criminal interference with the repose and religious liberty of the community. If abuses of this, character should exist or hereafter arise, the Legislature may add to the list of things now prohibited by appropriate legislation. That is a legislative and not a judicial function. If the lawmakers want to suppress moving pictures on Sunday,, they can easily do so by including them in the list of acts, prohibited on that day.

We therefore come to the conclusion that the operation of a moving picture show is not “servile labor,” and not prohibited, within the meaning of this portion of our Sunday statute, and the order of the court sustaining the demurrer to the information is sustained, and the cause ordered dismissed.

DOYLE, P. J., concurs.

MATSON, J., disqualified and not participating.


text:
    J. F. BINKLEY v. STATE.
    No. A-3601.
    Opinion Filed June 16, 1921.
    (198 Pac. 884.)
    (Syllabus.)
    Sunday — Observance of Day — Operating Moving Picture Show. Ordinarily, the selling of tickets and the managing and operating of a moving picture show on Sunday is not “servile labor” nor “selling, offering or exposing for sale of any commodity,” within the meaning of section 2404, Rev. Laws 1910, and section 2405, as amended by Laws 1913, c. 204.
    Appeal from County Court, Payne County; Wilberforce ■Jones, Judge.
    J. F. Binkley was convicted of Sabbath breaking, and he appeals.
    Beversed.
    Walter Mathews, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

The amended information upon which the defendant was tried, charged in substance that on Sunday, February 2, 1919, the defendant, J. F. Binkley, willfully and unlawfully, in the city of Cushing, kept open, superintended •and managed a public picture show, and that he then and there sold to the public, for gain and profit, the privilege of ■admission to such show for the sum of 20 cents; and that he compelled his servants and employees, under his charge and control, to perform servile labor, in conducting such show, and that services were not works of necessity or charity.

To this amended information a demurrer was filed by the defendant, alleging that the information did not state facts sufficient to constitute a public offense; that more than one offense was charged in the amended information; that the things charged therein as being sold or offered or exposed for sale were not a commodity; that the work done did not constitute servile labor; and that the act or omission charged is not clearly and distinctly set forth, in ordinary and concise language, with such a degree of certainty and in such a manner as to enable the defendant to understandingly know what is intended; or to enable the court to pronounce judgment upon a conviction according to the right of the case. This demurrer was by the court overruled, and the defendant allowed an exception.

The evidence disclosed that the defendant, on the Sunday alleged in the amended information, for a money consideration, admitted divers persons to a moving picture show in Cushing, Okla., there being operated and managed by the defendant. At the close of the testimony the defendant asked the court for a peremptory instruction, directing the jury to return a verdict of not guilty, for the reason that the allegations of the information and the testimony failed to show that a crime had been committed. This motion was overruled, and an exception reserved and allowed. The court thereafter instructed the jury that- to keep open, manage, and superintend a theater and sell tickets therefor on Sunday is servile labor, within the meaning of the law. The court further instructed the jury that all manner of public selling, or offering or exposing for sale of any commodity, with certain exceptions not necessary to notice, is a punishable offense under our Sunday statute. These and other instructions given were excepted to by the defendant, and exceptions allowed by the court.

The issues here involved are similar to those decided in the ease of the State v. Clint Smith, No. A-2497, ante, p. 184, 198 Pac. 879, just handed down by this court, except that in this case it seems to have been the contention of the county attorney and the trial judge that the selling of theater tickets was a sale of a commodity or privilege within the meaning •of subdivision 4, § 2405, Rev. Laws 1910, as amended by the act of May 17, 1913 (chapter 204).

Webster’s New International Dictionary defines the word “commodity,” in the sense here used, as “a parcel or quantity of goods, including everything movable that is bought •or sold, as goods, wares, merchandise, products of land and manufactures.” Black’s Law Dictionary defines the term as “goods, wares, and merchandise of any kind; movables; articles of trade or commerce.”

Applying these definitions and the context of subdivision 4, § 2405, supra, where the term “commodity” is used in connection with the sale of meat, bread, ice, drugs, etc., it would appear that the word does not refer to the sale of a privilege to attend a moving picture show.

The question of whether or not the sale of tickets to and the conducting and managing of a moving picture show is .servile labor is discussed at length in the case of State v. Clint Smith, supra, in which it was held by this court that such acts and conduct were not servile labor, within the meaning of the statutes. For the reasons there given and for the reasons herein stated, this case is reversed and the cause below ordered dismissed.

DOYLE, P. J., concurs.

MATSON, J., disqualified and not participating.


text:
    J. F. BINKLEY v. STATE.
    No. A-3602.
    Opinion Filed June 16, 1921.
    (198 Pac. 885.)
    (Syllabus.)
    Sunday — Observance — Operating Moving Picture Show. -Ordinarily, the selling of tickets and the managing and operating of a moving picture show on Sunday is not “servile labor”, nor selling, offering or exposing for sale of any commodity” within the meaning of section 2404, Kev. Laws 1910, and section 2405, as. amended by Laws 1913, c. ,-204.
    Appeal from County Court, Payne County; Wilberforee-. Jones, Judge.
    J. F. Binkley was convicted of Sabbath breaking, and he appeals.
    Reversed.
    Walter Mathews, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty., Gen., for the State.
   BESSEY, J.

The amended information, upon which the-defendant was tried, charged in substance that on Sunday,. February 9, 1919, the defendant J. F. Binkley, willfully and unlawfully, in the city of Cushing, kept open, superintended, and managed a public picture show, and that he then and there sold to the public, for gain and profit, the privilege-of admission to such show for the sum of 20 cents; that he-compelled his servants and employees, under his charge and control, to perform servile labor in conducting such show, and that such services were not works of necessity or charity.

To this amended information, a demurrer was filed by the defendant, alleging that the information did not state facts sufficient to constitute a public offense; that more than one-offense was charged in the amended information; that the things charged therein as being sold or offered or exposed for-sale were not a commodity; that the work done did not constitute servile labor; and that the act or omission charged is not clearly and distinctly set forth in ordinary and concise language, and in such manner as to enable the defendant to understandingly know what is intended, or to enable the court to pronounce judgment upon a conviction, according to the right, of the case. This demurrer was by the court overruled, and the; defendant allowed an exception.

The evidence disclosed that the defendant on the Sunday salleged in the amended information, for a money consideration admitted divers persons to a moving picture show in Cushing, Olda,, there being operated and managed by the defendant. At the close of the testimony the defendant asked the court for a peremptory instruction, directing the jury to return a verdict of not guilty, for the reason that the allegations of the information and the testimony introduced failed to show that a crime had been committed. This motion was overruled, and an exception reserved and allowed. The ■court thereafter instructed the jury that to keep open, manage and superintend a theater and sell tickets therefor on Sunday is servile labor, within the meaning of the law. The court further instructed the jury that all manner of public selling, or offering or exposing for sale of any commodity, with certain exceptions not necessary to notice, is a punishable offense under our Sunday statutes. These, and other instructions given, were excepted to by the defendant and exceptions allowed by the court.

The issues here involved are similar to those decided in the case of the State v. Clint Smith, No. A-2497, 19 Okla. Cr. 184, 198 Pac. 879, just handed down by this court, except that in this case it seems to have been the contention of the county attorney and the trial judge that the selling of theater tickets was the sale of a commodity or privilege, within the meaning of sub-division 4, § 2405, Rev. Laws 1910, as amended by act of May 17, 1913 (chapter 204).

Webster’s New International Dictionary defines the word '“commodity”, in the sense here used, as a “parcel or quantity of goods, including everything movable that is bought or •sold, as goods, wares, merchandise, products of land and manufactures.” Black’s Law Dictionary defines the word as “goods, wares, merchandise of any kind; movables; articles »of trade or commerce.”

Applying these definitions and the context of subdivision 4, § 2405, supra, where the term “commodity” is used in connection with the sale of meat, bread, ice, drugs, etc., it would appear that the word does not refer to the sale of a privilege to attend a moving picture show.

The question of whether or not the sale of tickets to- and the conducting and managing of a moving picture show is servile labor is discussed at length in the ease of the State-, v. Clint Smith, supra, in which we held that such acts and conduct do not constitute servile labor within the meaning; of the statutes. For the reasons there given and for the reasons herein stated, this case is reversed, and the cause below ordered dismissed.

DOYLE, P. J., concurs.

MATSON, J., disqualified and not participating.