text:
    W. T. Cave v. United States.
    No. 699,
    Ind. T.
    Opinion Filed April 10, 1909.
    (100 Pac. 1118.)
    1. INSTRUCTIONS — Harmless Defects. I£ the instructions given to the jury correctly state the law applicable to the case on trial, and are not misleading, such instructions will be held sufficient, although given in a desultory, ungrammatical, and illogical form.
    2. APPEAL — Objections Not Raised Below. This court will not on appeal (except in capital cases) review errors not objected to at the trial, nor included in the grounds of a motion for a new trial, in the trial court, but appearing for the first time in the assignments of error contained in the petition in error in this court, unless such errors arc fundamental or jurisdictional.
    (Syllaibus by the Court.)

      Error from the United States Court for the Northern District of the Indian Territory; William B. Lawrence, Judge.

    W. T. Cave was convicted of larceny, and brings error.
    Affirmed.
    On October 25, 1904, the plaintiff in error, W. T. Cave, hereinafter designated as the accused, was indicted on two counts, the first charging the larceny of a horse, on July 18, 1904, alleged to be the property o>f W. L. Lowry. The second count charges him. with receiving and concealing the' horse, knowing the same was stolen. On October 25,. 1904, the accused was arraigned and entered his plea of ffiiot guilty." On the issues thus joined this case came on for trial before a jury on the 31st of October, 1905, said trial resulting in a verdict of guilty as charged in the second count. In proper time the accused filed his motion for a new trial, which was overruled and exceptions duly saved. The accused was sentenced to a term of two years’ imprisonment in the United States penitentiary^ at Ft. Leavenworth, Kan. On December £'3-, 1905, the accused prosecuted his appeal to the United States Court of Appeals in the Indian Territory, where the same was pending when this state was formed. By operation of law at the commencement of statehood this case was pending in the Supreme Court of this state, from which court it was transferred to the Criminal Court of Appeals upon the creation thereof.
    The motion for a new trial sets forth four grounds, as follows :
    (1) “That the verdict of the jury upon said second count of the indictment was decided by lot; was a compromise verdict, arrived at under a mistaken belief as to the extent of punishment thereunder.”
    (2) “That the court erroneously instructed the jury as to the law applicable to said second count of the indictment, which instructions were properly excepted to by the defendant, and failed to instruct the jury upon all the essential elements and ingredients constituting the offense charged in said second count.”
    (3) “That the verdict is against the law applicable to said offense charged in said second count of the indictment herein.”
    (4) “That said verdict of the jury upon the second count of the indictment is not sustained and warranted by the evidence in this case, and is against the evidence adduced upon the trial.”

      Preston 8. D.avis, for plaintiff in error.

      Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the United States.
   BAKER, Judge,

(after stating the facts as above). The petition in error contains 19 specifications, which are, in substance, as follows: (1) That the court erred in refusing request of defendant to exclude from the courtroom the witnesses for the government during the time that the trial jury was being impaneled. (2) In sustaining objection made by counsel for the government to questions asked by counsel for the accused of the witness Lowry, which were objected to. (3) In sustaining the objection, made by counsel for the government, to a question asked by the counsel for the accused of witness Hugh Richards. 14) In sustaining the objection made by counsel for the government to another question asked of the witness Richards. (5) In overruling objection made by accused to the introduction of the testimony of Arthur Richards, called for the government. (6) In sustaining the objection of counsel for the government to a question asked Arthur Richards. (7) In overruling the objection of the accused to questions asked by the government of the witness Will Mason. (8) In overruling objection to questions asked Horace Rowley by the government. (9) In overruling accused’s objection to questions asked W. E. Twitchel. (10) In overruling the objections of the accused to a second set of questions asked saiid W. E. Twitchel. (11) In overruling- objections of the accused to a third set of questions asked said W. E. Twitchel. (12) In sustaining an objection made by the government to questions asked Tixie Cave by accused. (13) In instructing the jury as follows: “Gentlemen, in this case certain facts are material in order to help you in finding the defendant guilty.” The fourteenth, fifteenth, sixteenth, and seventeenth assignments of error relate to instructions given to the jury. (18) In rendering judgment and pronouncing sentence upon the verdict.

Many questions are raised in the assignments of error and submitted in this court for the first time. They, not having been presented to the court below in the motion for a new trial, will therefore not be considered here. This court will not review alleged errors (except in capital cases) where the opportunity was not given to the court below to correct the errors complained of. ’We will therefore direct our attention'only to the errors set forth in the motion for a new trial.

The first error complained of is that the verdict upon the second count of the indictment was decided by lot, and was a compromise verdict, arrived at under a mistaken belief as to the extent of punishment thereunder, and was not a fair expression of opinion of said jurors. There is nothing in the record whatever to support this contention. The verdict, having been returned in open court, imports absolute verity, as having been returned under the oath of the jurors, and each of them. The record shows no attempt whatever to impeach the verdict upon this ground, and no argument is presented in the brief that would in any way, or to an3r extent, sustain the claim of the accused in this connection. If there was at any time reason for making the claim that the verdict was obtained as alleged in the motion for a new trial, it has evidently been abandoned, and therefore requires no further -consideration by this court.

The second ground stated in the motion for a new trial is that the court erroneously instructed' the jury as to the law applicable to the second count of -the indictment, and failure to instruct the jury upon all the essential elements and ingredients constituting the offense charged in said count. The trial court in this case upon its own motion gave the jury a general charge, although tire court had not given, nor had the government asked, an instruction that the possession of personal property, recently stolen, unexplained was presumptive or prima, facie evidence of guilt. The learned counsel for the accused requested a general charge as to the presumption arising from the possession of stolen property, contending correctly that the possession must be exclusive in the accused, before the presumption would arise. Thereupon the court instructed the jury as follows:

“There is a rule of law that, if property has been stolen, and soon after the stealing of the property it should be found in the possession of an individual, the fact that the property is found in his possession soon after the theft is called presumptive evidence that he is the thief. Now it is asked that the court instruct you that that possession must be exclusive. It is proper that the court must explain to you what kind of possession a person may have of property in order that this presumption may' exist. Of course he must have possession. What is possession? Possession is that control over personal property which indicates that a man is the owner of it, because possession of property is the presumption that every man is the owner. To illustrate: If you should see a man using a horse, riding and driving it along the road, as far as you know the presumption is that he is the owner of it; but, if he does not have such possession, if it should be in his stable, you would háve to infer that it belonged to him. But here is a man with a stable that everybody puts horses in, and he left the doors open and for public use generally, and if you should see a horse in that stable, and these facts appear, you would not presume that it was his horse, but that it might be somebody else^s horse. It depends upon the character of the possession. He would not have to have a horse by the halter and hold it all tire time, but if it is in his charge, in his building, under his control, if the evdence shows that, then that is all the possession the law requires, because if a man has not got it, or the right to control it, he is not in possession, or somebody else must have possion, or nobody. That is a question for you to determine: Whether he did have possession of that property. That you must determine yourself the same as in every ordinary affair of life. If you think he had control of this property, and charge of it, and the horse was in his stable under circumstances such as it had not the right to be there — or if it was there — it is for you to. determine whether it should be there or not. That depends upon the facts and under the circumstances in this case.”

After all the instructions had been given, including the instruction upon the presumption of guilt growing out of the possession of stolen property, knowing the same to have been stolen, the accused had entered the following exception:

“We desire to except to the instructions of the court to the jury that, though the evidence may not be complete and full, •yet if it satisfies your mind that he received this property and concealed it, knowing it to have been stolen, then you would find him guilty on the second count of the indictment.”

The record shows that the only other exception of the accused to the charge is as follows:

“TJpon .the charge of reasonable doubt, and also upon the matter of the alibi as a defense, because the instruction was of such a nature as to disparage, and to indicate to the jury the opinion of the court that there is a lack of proper testimony to maintain this defense.”

■ The instruction just quoted was a part of tire court’s general charge, and must be read in connection with the whole, charge to arrive at its correctness, or otherwise, and to determine the effect thereof upon the minds of the jury. The charge is by no means a model of perfection. On the contrary, it is desultory, disconnected, and leaps from- one subject to another rather abruptly. It is couched in peculiar words and jihrases, and is by no means a beautiful disquisition of the law of the case, and will not go down in history as elegant and euphonious in diction; nevertheless the all-important question for this court to determine is: Does the charge, notwithstanding its imperfections, fairly state the law applicable to the case at bar correctly, and were the substantial legal rights of the accused thereby properly safeguarded? If so, then the requirements of the law, the interest of justice, and the rights of the accused were properly subserved. We have carefully examined all the instructions given, and we think they state the law, and the substantial rights of the .accused were amply and fully protected, and no reversible error was committed by the trial court in giving the charge shown by the record to have been given.

It is true the court commenced his charge in an unhappy way, to say the leást, by stating: “Gentlemen, in this case certain facts are material in order to help you in finding the defendant guilty.” If the .sentence just quoted stood alone, and was not immediately followed with this language: “These facts are contained in the indictment. The indictment is a mere charge in the case, made by the grand jury under their oaths, and filed with the court; and a defendant, when indicted, must be proven guilty upon that indictment — not outside of it — and only for the offense charged in the indictment, and certain things must be proved as alleged in that indictment, as I have stated to you. The indictment is not a part of the evidence in the case, but a mere charge, and should have no influence .upon your minds as a matter of proof in the case. You will be entitled to take this indictment .with you in the jury room. The case must stand or fall under the allegations contained in the indictment and upon the proof in support of it, beyond all reasonable doubt” — it might have been harmful. From a careful reading of the charge it will be observed that the court certainly could not have desired to convey to the jury any impressions he may have had as to the guilt of the accused, nor did he, taking the whole charge together, say anything of a nature to disparage the defense, or the rights of the accused, and to indicate to the jury that the court was of the opinion that there was a lack of proper testimony to maintain the defense; that the court below zealously guarded the rights of the accused — is clearly reflected from the charge. Eleven times the court calls the jurors’ attention expressly to the fact that they must find the accused guilty beyond a reasonable doubt. Each part of the instructions given was so connected by the language used that, upon all and each of the essential elements of the charge against the accused., the jury must be satisfied of the guilt of the accused beyond a reasonable doubt.

We fail to find in the instructions given, or from any remarks made by the trial court in the presence of the jury, that said court intended to convey any opinion or impression as to the weight of the evidence or the. credibility of any witness. The court, after instructing the jury as to the purposes of the indictment, and that the allegations contained therein were a mere charge, and no part of the evidence, and that the proof must be confined to the offense set forth in the indictment, gave instructions as to the essential and material parts of the offense as averred in the indictment, and, referring to the jurisdictional matters set forth in the indictment, such as the time and place of the •commission of thé offense, the ownership and identity of the specific property alleged to have been stolen, the intent of the accused, etc., said: “All these things must be proved to your satisfaction beyond a reasonable doubt. This, T have pointed out to you.”

The record shows also that the trial court was apparently anxious that its views as to reasonable doubt should not be misunderstood. The jury was instructed as follows:

“Every man who is indicted the law presumes innocent till he is proved guilty beyond a reasonable doubt. That is nothing but justice and fairness and common sense. If a charge is sustained against a man, you don’t have to believe it until it is proven, but the next thing is to prove it, and the law says he is presumed to be innocent, clothed with innocence, all the time during the case until the close of the case and the argument — till all tire evidence tending to show that he is the party charged be•yond a reasonable doubt. That must appear all the way through up till that time.”

The accused especially complains of the instructions of the court “upon the matter of the alibi as a defense.” In this connection the court instructed the jury as follows:

“Now the defendant has put in evidence tending to show, or showing, that he could not haye committed this crime, and that he was not the man who sold the property, because he was not at Cherryvale, where the alleged selling occurred, on that day, and he could not have been the man who committed the offense. While he had a right to put in that defense, you have a right to consider it.”

Immediately following the above quoted instruction, the court further instructs the jury as follows:

“I will say to you at first it is necessary to show in this case, in order to find the defendant guilty of having sold this property, that he is the person that was at Cherryvale at the time alleged, and if there is any reasonable doubt in your mind of his Being there, you should give him the benefit of that doubt in considering that case. He claims that he wasn’t there, and he has a right to make that defense that he could not have been the person seen there. You have heard all the testimony on that point, and it is for you to say whether or not you shall believe that testimony. That is what is called trying to prove or proving an alibi, one or the other.”

The third ground of the motion for a new trial is “that the verdict is against the law applicable to said offense charged in said second count of the indictment.” We have carefully read all the evidence in this case, and we are of the opinion that the evidence would have fully and amply sustained a verdict of guilty on the first count of the indictment, as well as on the second count. The evidence shows conclusively that the stolen horse was found in the possession of the accused, who made no effort whatever to explain such possession, but contented himself with denying the possession. Therefore the jury may have properly inferred that the accused himself stole the animal; but the absence of evidence as to how he obtained possession of the stolen horse probably induced the jury to give him the benefit of the theory that the horse might have been brought to his livery barn (which the evidence shows was a sort of a public place) by some one else. The evidence leaves no doubt that the black pony belonging to Lowry was stolen, that the accused knew of it, and that he felon-iously and surreptitiously took it to Cherryvale, Kan., arid traded it for another horse, thereby concealing, or attempting to conceal, it from the owner and depriving the owner thereof.

The jury had a right to take into consideration, and doubtless did, the acts and conduct of the accused in connection with his visit to Cherryvale. The fact that he donned the garb of a brickyard laborer, and represented to Lewis, with whom he traded horses, that he was employed at a brickyard near Cherryvale, was done undoubtedly to assist the accused in disposing of the stolen horse, and to secure the benefit that might accrue to him in obtaining possession of the horse from Lewis, and hiding and concealing his own identity. The further fact that the evidence shows that the horse the accused obtained from Lewis disappeared immediately after the exchange was made, and was lost to .the owner, without an explanation by the accused as to what became of the Lewis horse, certainly ivas a very suspicious circumstance, and pointed with unmistakable eiiect to his guilty knowledge of the fact that the horse he traded to Lewis was, in fact, a stolen horse, thus fastening upon him knowledge of the fact that the horse he took to Cherryvale was stolen, and the further fact -that he intended to deprive the owner of the horse of the use thereof, and that he hoped to profit by the disposition of the stolen horse, if in fact he did not intend thereby to aid the thief. We, therefore, think the testimony fully sustains the verdict. The case was fully and ably presented -to the jury. They saw the witnesses; heard their statements; had the-means of judging of their credibility, or want of credibility'; their candor,-or want of candor; their fairness or intelligence, or otherwise; and their interest, if any, in the result of the action. It appearing that the verdict was fairly and impartially rendered, it must stand.

Coming now to a consideration of the various specifications of error set forth in the petition of error which are not predicated upon any grounds alleged in the motion for a new trial. In these specifications there is alleged that the court erred in sustaining .the objection of the government to questions asked by the accused of witnesses W. L. Lowry, Hugh Richards, Arthur Richards, and W. E. Twichel on cross-examination, and to the overruling of the objection of the accused to questions propounded to Horace Row-ley by the government, and to the sustaining of an objection of the prosecution to questions asked witness Ti-xie Cave, and that the.court also erred in failing to exclude from the courtroom, at the request of accused, witnesses for the government during the time that the trial jury was being impaneled. The specifications are not predicated upon any grounds set forth in the motion for a new trial, nor ivas the attention of the trial court called thereto, nor any opportunity given the court below to correct. The alleged errors, if any, are therefore not properly before this court. It was well settled in the Indian Territory, at the time of the trial of the case below, that the appellate court (except in capital cases) Avould not revieAV objections not made at the trial, and not included in the grounds for a new trial. In Williams v. United States, 6 Ind. T. 1, 88 S. W. 334, the Court of Appeals of the Indian Territory, Judge Townsend speaking for the court, said:

“Objections not made at the trial, nor included in the grounds for a new trial, but first appearing in the • assignment of error, will not be considered on appeal.”

This doctrine is sustained in Clay Peters v. United States, 2 Okla. 116, 33 Pac. 1031. In an opinion written by Judge Bur-ford, the court holds:

“Alleged errors of the trial court Avill not be reviewed on appeal, unless presented to the trial court for review by motion for neAv trial, except that the sufficiency of the charge to constitute a public offense, or the jurisdiction of .the court, may be questioned for the first time in this court.”

John Dempsey v. United States, 2 Okla. 151, 44 Pac. 382; Stansbury v. United States, 2 Okla. 151, 37 Pac. 1083; Hurst v. Sawyer, 2 Okla. 470, 37 Pac. 817; Wamsley v. Territory of Oklohoma, 3 Okla. 279, 41 Pac. 600; Friedman v. Weisz, 8 Okla. 392, 58 Pac. 613; Provins v. Lovi, 6 Okla. 94, 50 Pac. 81; Penny v. Fellner, 6 Okla. 386, 50 Pac. 123.

This court concurring in the soundness of the doctrine enunciated in the cases just quoted, it will not review alleged errors ■of the record which have not been first presented to the trial court in a motion for a new trial unless the errors relied upon for reversal are fundamental or jurisdictional.

Having carefully considered the record in this case, we find no error disclosed, and, believing the accused has had in all respects a fair and impartial trial, the judgment of the court below is affirmed, and the sheriff of Nowata county be, by proper mandate from this court, directed to execute this sentence of the court below.

FURMAN, Presiding Judge, and DOYLE, Judge, concur.


source: Caselaw Access Project

author: FURMAN, Presiding Judge,

license: Public Domain

text:
    Eugene Titsworth v. State.
    No. A-57.
    Opinion Filed April 17, 1909.
    (101 Pac. 288.)
    1. INTOXICATING LIQUORS — Right to Keep at Place of Business. This court appreciates the frankness of Hon. Fred S. Caldwell, enforcement attorney, and indorses as correct the following statement contained in his brief, and adopts it as a part of the syllabus of this cape: "It is not per se unlawful under that statute for a person engaged in any other business than the drug business’to keep or use, in or about his place of business, ‘intoxicating liquors. That is to say, in the case of a groceryman, hardware merchant, dry goods merchant, or any other than the drug business, the keeping of intoxicating- liquor in or about the place of business would not constitute a crime, unless accompanied with the intent of the possessor to use or dispose of the same ■in violation of some one or more of the provisions of the enforcing act.”
    2. SAME — Possession by Pharmacists. Section 8, art. 2, of the enforcement act (Laws. 1907-0S, p. C00, c. 69), is applicable alone to those apothecaries or pharmacists who have complied, or-attempted compliance, with the provision therein contained. Other pharmacists or apothecaries Who have not complied, or-attempted compliance, with the conditions of said section are not subject to the penalties therein prescribed.
    3. INDICTMENT AND INFORMATION — Intoxicating Liquors — Language of Statute. An information or indictment which attempts to charge a violation of section 8, art. 2, of the enforcement act (Laws 1907-08, p. 600, c. 69), must allege the offense in the language, or use substantially the language, of the section,, and must allege a compliance with the conditions of said section-8. If it fails to do this, it will not charge a public offense.
    4. CONSTITUTIONAL -LAW — “Law of the Land.” The term “law of the land” includes the law of the state, the Constitution of the state, and the Constitution of the United States.
    5. COMMERCE — “Regulate." The word “regulate,”' as used in the-commerce clause of the federal Constitution, means to control.
    (Syllabus by the Court.)

      Appeal from Muskogee County Court.

    Eugene Titsworth was convicted of a violation of the liquor law, and appeals.
    "Reversed.
    On the 27th of June, 1908,' the county attorney of Muskogee-county filed in the county court of said county the following information against the appellant, Eugene Titsworth, who will here-, inafter be called the defendant:
    “In the County Court of Muskogee County, Okla. State of Oklahoma v. Eugene Titsworth, Defendant. In the Name and by 'the Authority of the State of Oklahoma; Now comes W. J. Crump, the duly qualified and acting county attorney in and for Muskogee county, state of Oklahoma, and gives the county court of Muskogee county, state of Oklahoma, to know and be informed that Eugene Titsworth, did, in Muskogee county, and in the state of Oklahoma, on or about the 26th day of June in the year of our Lord one thousand nine hundred and eight, and anterior to-the presentment hereof, commit the crime of having and keeping, in and about his place of business and apothecary, intoxicating liquors, said liquors not being a lawful purchase, in the manner and form as follows, to wit: That the said Eugene Tits-worth, a retail apothecary, in the county of Muskogee, state of" Oklahoma, on the 26th day of June, 1908, did knowingly, wil-fully, and unlawfully have and keep in and about his place ol business and apothecary intoxicating liquors, said liquors not being a lawful purchase from the state agency and local agency, Muskogee county, state of Oklahoma, or superintendent, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state.”
    On the 21st day of September the defendant filed the following demurrer to the information:
    “In the County Court of Muskogee County, State of Oklahoma. State of Oklahoma v. Eugene Titsworth, Defendant. No. 124. 'Comes the defendant, Eugene Titsworth; and demurs to the information herein, for the following reason, to wit: Because ■said information does not state facts sufficient to constitute a public offense against this defendant. Wherefore defendant prays that he may be discharged hence with his costs. S. M. Rutherford, Attorney for Defendant.”
    This demurrer was by the court overruled, to which action of the court the defendant reserved an exception. Upon the trial of the case the jury found the defendant guilty as charged in the information, and assessed his punishment at imprisonment for 30 days, and a fine of $250. The defendant filed a motion in arrest of judgment, upon the ground that the information did not state facts sufficient to constitute a crime under the law. This motion was overruled by the court, and the defendant reserved an exception. The case is regularly before this court upon appeal.

      S. M. Rutherford, for appellant.
    — On question of sufficiency of information: State v. Hesher, 46 Kan. 534; State v. Neil, 4 Kan. App.,- 45 Pac. 623; State v. R. R. Go., 54 Ark. 546; Warren v. State, 54 Ark. 660.

      Fred S. Galdwell, for the State.
   FURMAN, Presiding Judge,

(after stating the'facts as above). The controlling question in this case is as to whether it is per se 'unlawful for an apothecary or pharmacist to have and keep, in and about his place of business, as such apothecary or pharmacist, intoxicating liquors, without the intention to dispose of them in violation of the provisions of the enforcement act. which liquors were not acquired by lawful purchase from the state agency or the local agency, without having first executed a bond, approved by the superintendent of the state agency, conditioned as provided in section 8, &-rt.' 2, of the enforcement act (Laws 1907-08, p. 600, c. 69), which section is as follows:

“Sec. 8. Each apothecary or pharmacist doing business in this state, before acquiring, keeping, or using in or about his said pharmacy or apothecary any liquors the sale of which is prohibited, by this act shall execute a bond in the sum. of not less than one thousand ($1,000.00) dollars, to be approved by the superintendent conditioned that none of said liquors shall be used or disposed of for any purpose other than in compounding or preserving medicines the sale of which would not subject him to the payment of the special tax required of liquor dealers by the United States, and that he will not violate any of the-provisions of this act. Said bond shall be recorded in the office of the superintendent, and the original thereof deposited with the Secretary of State. It shall be unlawful for any retail apothecary or pharmacist to have in or about his said apothecary or pharmacy more than eight gallons of alcohol and five gallons of other liquors at any one time, or to use or keep in or about his apothecary or pharmacy any such liquors for any purpose whatsoever except such liquors as shall have been furnished by the superintendent under the provisions of this act. Any person who shall violate the provisions of this section shall be guilty of a misdemeanor, and in addition thereto shall be liable to penalty of not less than fifty ($50.00) dollars, nor more than five hundred ($500.00) dollars for each offense. It shall be the duty of the county attorney to bring suit on any bond executed by such persons for the recovery of any such penalty.” (Sess. Laws 1907-08, p. 591, e. 69.)

Whatever the personal views of the members of this court may be upon this question, it must be remembered that it is our sworn duty to decide this, as well as all other questions, according to the law as it is, whether we like the law or not. The judge who would attempt to defeat or misconstrue the law of the land simply because he did not personally approve it, or who, Pontius Pilate-like, would attempt to keep his fingers upon the public pulse, and allow public clamor to cause him to swerve one iota from a correct declaration of the law, is utterly unworthy of the confidence and respect of right-thinking people, and establishes precedents which will result in the subversion of our institutions, and the ultimate defeat and destruction of justice itself. The true-judge maintains the integrity of his character, and enforces the law as it is, without regard to his personal feelings, or any consequences which may ensue to himself, let his conduct please or displease whomsoever it may. If he does not do this, he is a coward, a perjurer, and a traitor, a disgrace to the position which he occupies, a curse to the people among whom he lives, and should receive the contempt of all honest people. It should also be remembered that the law of the land not only means the law of our own state;, but also includes the Constitution of our state, and above all the Constitution of the United States, Section 2 of our own Constitution is as follows:

“Sec. 2. Constitution of United States Supreme. Section 1. The state of Oklahoma is an inseparable part of the federal Union,, and the Constitution of the United States is the supreme law of the land.” (Const, art. 1, § 1 [Bunn’s Ed. § 2]).

Article 6 of the Constitution of the United States contains, the following:

“This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.”

The Constitution of the United States declares that Congress, shall have power “to regulate commerce with foreign nations, and' among the several states, and with the Indian tribes.” To “regulate” means to control. So it is seen that- the power of regulating or controlling commerce between the states is vested- exclusively in Congress, and that no state has the power to pass any law upon this subject, or which would in any manner interfere with or abridge the right of one of its citizens to purchase in another-state any article of commerce which could be lawfully sold in the state where the purchase is made, and bring it to his home in his own state for his personal use. This has been decided so often that no person who is well informed upon this subject will question the rule above stated. This matter has been passed upon by the Supreme Court of Oklahoma in Schwedes v. State, 1 Okla. Cr. 245, 99 Pac. 804, and by the Criminal Court of Appeals in the cases of Houston Hudson v. State, ante, p. 176, 101 Pac. 275; Webb High v. State, ante, p. 161, 101 Pac. 115,; and Josh McCord v. State, ante p. 214, 101 Pac. 280. The cases above referred to contain such a thorough discussion of this matter, and quote from such an overwhelming weight of authorities, that it is not necessary to repeat what will be found in them. If we are in error touching this matter, it will be an easy thing for the enforcement officer of this state to make a test case in a civil proceeding, and carry it to the Supreme Court of the United States for final determination. If that tribunal sees fit to reverse its former decisions, we will be bound by such action, and cheerfully follow it. But, until this is done, we feel constrained to adhere to the decisions as they stand now.

If the decisions of the Supreme Court of the United States are wrong, application should, and can, be made to that court for a reversal-of these decisions. It is a waste of time, money, and labor to appeal .to this court to set aside anything which that court has decided. The Supreme Court of the-United States, of necessity, must be the final judge of the construction of the United States Constitution. Otherwise we would have a hydro-headed judicial system in which 47 independent appellate courts could construe this instrument as they pleased, which would -result, not only in confusion, but in civil war. Each tribunal would be supported by the military force of the' government which it represented. This would result in death and destruction to our form of government. Certainly no reasonable person desires this court to adopt a polic3r which would bring about such serious consequences as this. It would be -treason itself. One thing can be depended upon, and that is, that this court will not make any •such insane attempt. Under the Constitution of the United States, and the decisions of the Supreme Court of the United States, it is clear that any resident of Oklahoma can purchase intoxicating liquors in another state, and ship them into this state, and to points of destination, for his own personal use, and that such shipments constitute interstate commerce, and that any state law to the contrary is void. But these shipments lose their character as interstate commerce as soon as they reach the point of their destination, and any further shipment' of such liquors is subject to state control. The exact language of the Supreme Court of the United States is as follows:

“Equally established is the proposition that the right to send liquors from one state into another, and the act of sending the same, is interstate commerce, the regulation whereof has been committed by the Constitution of the United States to Congress, and hence that a state law which denies such a right, or substantially interferes or hampers the same, is in conflict with the Constitution of the United States. * * * But the right of persons in one state to ship liquor into another state to his residence for his own use is derived from the Constitution of the United States, and does not rest on the state law. Either the conditions attached by the state law unlawfully restrain the right, or they do not. If they do, then they are void.”

And again, the court, speaking of the right of every citizen of a state to purchase and have shipped to him liquors for his own use, says:

“But the right arises from the Constitution of the United States; it exists wholly independent of the will of either the lawmaking or executive power of the state; it takes its origin out of the state of South Carolina, and finds its support in the Constitution of the United States. Whether or not it can be exercised depends solely upon the will of the person making the shipment, and cannot be, in advance, controlled or limited by the action of the state in any department of its government.” (Vance v. Vandercook, 170 U. S. 439, 18 Sup. Ct. 674, 42 L. Ed. 1100.)

If a resident of this state may lawfully purchase intoxicating liquors in another state, and ship them to his place of business or home, for his own use, upon what ground can the claim be' made that he cannot keep such liquors at his home or place of business, provided that he does so exclusively for his own use? Is it not true that the grant of power to do a certain thing includes and carries with it the right to do all things which are necessary to the full exercise and enjoyment of the power expressly granted? There can be but one logical answer to this question. If a person can lawfully bring intoxicating liquors to his home or place of business, so long as he does not attempt or intend Lo use such liquors except for his own use, he has the right to keep them there. There is no logical escape from the conclusion that, if a resident of this state has the constitutional right to ship into the state intoxicating liquors for his own use, he has the same right to receive, keep, and use such liquors for the purpose for which they were shipped. This is the law whether this court likes it or not. To deny this proposition is to assume the position that the state may do indirectly that which it is expressly forbidden by the Constitution of the United States from doing directly. Herein lies the principal obstacle to the complete enforcement of the prohibition of the sale of'intoxicating liquors by the states. But the states are powerless to remedy this evil. Belief can-only •come through congressional action.

Having sworn to support the Constitution of the United States and the acts of Congress in pursuance thereof, we are compelled to do so, it matters not how much we would like to see the law otherwise. It is our duty to uphold, support, and defend the Constitution of the United States, both in its letter and in-its spirit. Counsel who represented the state in this case, Hon. Fred S. Caldwell, recognizes the force of these views, and in his brief for the state says:

“It is not per se unlawful under that statute for a person engaged in any other business than the drug- business to keep or use, in or about his place of business, intoxicating liquors. That is to say, in the case of a groceryman, hardware merchant, dry goods merchant, or any other than the drug business, the keeping of intoxicating liquor in or about the place of business would not constitute a crime, unless accompanied with the intent of the possessor to use or dispose of the same in violation of some one or more of the provisions of the enforcing act.”

But counsel for the prosecution contends that a special exception should be, and is, made in the enforcement 'act as to all druggists or pharmacists. If this contention is correct, then it would seriously involve the constitutionality of the enforcement act. Const, art. 5, § 59 (Bunn’s Ed. § 132), is as follows:

"Sec. 132. General Laws to Have Uniform Operation. Sec. 59. Laws of a general nature shall have a uniform operation throughout the state, and where a general law can be made applicable, no special law shall be enacted.”

1 The fourteenth amendment to the Constitution of the United States (§ 1) is as follows:

"Sec. 1. All persons born or naturalized in the United' States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

But we do not deem it necessary to discuss and decide this question in this case, for under our view the enforcement act is not obnoxious to either of these constitutional provisions. Section '1, art. 3, of the enforcement act, makes it “unlawful for any person, individual, or corporation * * * to have the possession of any such liquors with the intention of violating any of the provisions of this act.” This is a general law, and applies to all persons alike. It includes all classes andi occupations. It is, in no sense of the word, an attempt to single out any special person or class or occupation of persons. It is absolutely uniform in its operations throughout the state, and is clearly within the police power of the state. Any, person, it matters not what his or her occupation may be, who has in his nr her possession any intoxicating liquors in this state, except for personal use, can be lawfully prosecuted and convicted under this statute. All stand upon a perfect equality. Neither does it take from or abridge the privilege of any of the citizens of the United States to have intoxicating liquors in his home or place of business for his or her personal use. Mr. Caldwell, in his brief for the state, admits that it iis not unlawful for a groceryman, hardware merchant, dry goods merchant, or a person in any other occupation to keep or use intoxicating liquors, but contends that section 8, art. 2, of the enforcement act, does take from druggists or apothecaries the privilege of having in or about their places of business any intoxicating liquors, except such as are specially permitted by the provisions of said section.

Counsel for the state in his brief, as hereinbefore quoted, expressly admits that persons engaged in all other occupations have the privilege of keeping intoxicating liquors about their places of business for their own use, but seeks to make a special exception as against _ druggists or pharmacists. The exact language used in his brief upon this point is as follows: "But, with the retail apothecary or phajrmacist it is different and he, under the provisions of said section 8, art. 2, of the act, is guilty of a crime if he does nothing more than keep intoxicating liquors in or about his place of business,” éxcept such as are permitted to be kept by the provisions of said section 8. As we understand the law, under the Constitution and decisions of the Supreme Court-of the United States, druggists or pharmacists have the same right that all other citizens have to ship, as interstate commerce, such liquors from another state to their homes or places of business for their own use. Any state Constitution or law which would ,deny or abridge this right or privilege would be and is void.

It is the purpose for which intoxicating liquors are to be used which'makes their shipment into the state lawful, as interstate commerce. If they can be lawfully shipped for the personal use of the consignee as interstate commerce to the point of destination, by what course of reasoning can it be made to appear that they cannot be lawfully received and kept at such place so long as they are used'alone for the purpose for which they were so lawfully shipped and received? To deny the right to so use is to defeat the right to so receive; to deny the right to so receive is to defeat the right to so ship. It is illogical to say that the right !to ship to the depot exists, but that such shipments cannot be carried to the home or place of business of the consignee, and there kept for his personal use. It might just as well be said that the fanner has the right to ship, his cotton over the railroad, but cannot carry it to the depot for shipment. There is just as much reason and justice in the latter statement as in the former. If a person cannot receive, keep, and use intoxicating liquors at his home or place of business, which have been lawfully shipped to him for his own use- from another state as interstate commerce, it is folly to say that the state recognizes the right of such interstate shipments. The adoption of such a rule of construction would be to announce that a state can defy and defeat the Constitution of the United States. It would be to brand as a lie that clause in our state Constitution which declares that the Constitution of the United States is the supreme law of the land. But we do not understand that the enforcement act contemplates or is fairly susceptible of any such construction. It must be construed as an entirety, and in harmony with all of its provisions.

Section 14, art. 3 (Sess. Laws 1907-08, p. 608, c. 69), is in this language:

“Sec. 14. All places where liquors of any kind are manufactured, sold, bartered, given away, or otherwise furnished in violation of any of the provisions of this act, are hereby declared to be public nuisances and shall be abated in the manner provided by law at the suit of any citizen of the state/’

This is a general provision which is applicable to all places, and operates generally on all classes and occupations in the state. But the keeping of such liquors for one’s own personal use is not an oifense under the enforcement act, neither could it, under the Constitution of tire United States, be an offense.

Section 18, art. 3 (Sess. Laws 1907-08, p. 609, c. 69), is as follows:

“Sec. 18. It shall be unlawful for any person to whom any liquors, the sale of which is prohibited by this act, shall be consigned whether consigned to him in his own name or in a fictitious name, to give any other person an order for any such liquors to any railroad company, express company, or other common carrier, or to any officer, agent or employe, of any railroad company, express company or common carrier, with the intent and for the purpose to enable such other person to get or receive any such liquors for himself or for any other person or persons other than the consignee. Any person violating the provisions of this section shall be guilty of a misdemeanor.”

This recognizes the right of interstate shipments, but makes it an offense for the person to whom the liquors are consigned to give any other person an order for such liquors, with the intent or for the purpose of enabling such other person to get possession of such liquors for his use. There is no clause in the enforcement act which attempts to make the interstate, shipments of intoxicating liquors for the personal use of the consignee unlawful. If there was, it would clearly be void as in conflict with the Constitution of the United States.

Section 19a, art. 3 (Sess. Laws 1907-08, p. 610, c. 69), of the enforcement act, is as follows:

“Sec. 19a. Any officer, agent or employe of the railroad company, express company or other common carrier, who shall knowingly carry or deliver any liquors, the sale of which is prohibited by this act, to or for any person to be sold, bartered, given away or otherwise furnished in violation of this act shall be guilty of a misdemeanor. Any such officer, agent or employe who shall knowingly deliver any such liquors to any person other than the person to whom it is consigned and without a written order in each instance of the consignee thereof, shall be guilty of a misdemeanor.”

This makes it an offense for any agent, officer, or employe of a railroad company or common carrier to carry or deliver any liquor to or for any person, or persons to be sold, bartered, given away, or otherwise furnished in violation of law, or to knowingly deliver any such liquor to any other person except the consignee, without the written order in each instance of the consignee thereof. 'Phis recognizes the lawful right of railroads or other carriers to carry and deliver to any consignee sucb liquors for Ms personal use. So it is seen that the enforcement act recognizes the right of any person to receive such shipments for his own use, and of the railroads to carry and deliver such shipments. These provisions do not attempt to exceed the powers of the state, and are strictly in accord with the Constitution and decisions of .the Supreme Court of the United States. The information in this case was drawn under section 8, art. 2, of the enforcement act. This section provides the conditions under which pharmacists and druggists may obtain and use intoxicating liquors, not for their own personal use, but to be used by them in compounding medicines for sale. The decisions of the Supreme Court of the United States'do not recognize shipments for this purpose as being protected as interstate commerce. Therefore this is a proper subject for state legislation, without restriction. All that is contained in this section must be construed as relating to this purpose. But, again, the latter part of section 8 provides that any druggist or pharmacist who keeps liquors about his premises, except as provided in the first part of the same, “shall be guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of not less than fifty dollars or more than five hundred dollars for each offense,” and then it is made “the duty of the county attorney to bring suit on any bond which may have been executed by such persons for the recovery of any such penalty.”

Section 8 must be construed as a whole. Each portion must be considered in the light of the other portions, and subject to the purpose to be accomplished by the entire section. Those only could be sued upon bonds who had given bonds. Only those who desire- to use intoxicating liquors to compound medicines for sale give bonds. Therefore only this class is subject to the-pains and penalties of the section. The pains and penalties prescribed in section 8 are inseparable; they stand or fall together. This alone is enough to malee it clear that the Legislature intended to confine section 8 and its penalties to those druggists who desired to keep and use liquors in their places of business, not for their personal use, but to be used exclusively for compounding 'medicines for sale. This construction of the enforcement act harmonizes it with all of its other provisions, and frees it from even the appearance of being unconstitutional. It is not special legislation, because it confers upon all druggists, who shall comply with its provisions, the right to use intoxicating liquors in compounding medicines for sale. Having consented to, and complied with, these conditions, such persons are liable to the penalties therein provided for a violation of these conditions. To our minds it is clear that, before the defendant could be held liable under section 8, he must have voluntarily brought himself under its provisions, or must have attempted to do so. This must be alleged in the information, and proven upon the trial, before he could be legally convicted.

The Supreme Court of North Carolina correctly states the law upon this subject as follows:

“But it is undisputed law that, when a statute enacts that any one of a certain class of persons, who shall do or omit, a certain act under certain circumstances, shall be guilty of a crime, the indictment must describe the person indicted as one of that class, and aver that he did or omitted the act under the circumstances which made it a crime. Every one of these things is an essential constituent of the crime.” (State v. Sloan, 67 N. C. 357).

It is not alleged in the information that the defendant intended to sell the liquor ire had in his place of business, and for this reason the court erred in not sustaining the demurrer to the information, and erred again in overruling the motion in arrest of judgment. If the defendant, being a druggist, had liquor in his place of business, not for his own personal use, but with the intention of selling, giving away, bartering, or-otherwise disposing of it, either by using it to compound medicines or otherwise, then he would have been liable just as any bootlegger is liable, and should have been prosecuted and ebnvicted under section 1 of article 3.

There is evidence in-the record that the defendant said, when bis place of business was raided, that others were making $10 by selling whisky where he was making $1. This in connection with the amount of whisky found in his place, would have sustained a conviction under this section. Section 8 of article 2 applies only to those druggists who have voluntarily complied, or attempted to comply, with its conditions, and these conditions are essential constituents of the crime, and must be alleged in the information or indictment, or no crime is charged.

It is the present opinion of the writer that, in cases against defendants for keeping intoxicating liquors for sale, the general reputation of such places, in the community in which they are situated, touching this point is admissible in evidence, just as it is permissible to prove a general reputation of a bawdyhouse, a gambling house, or of any place which constitutes a nuisance. Section 14, art. 3, of the enforcement act (page 608, Sess. Laws, 1907-08), expressly makes places where liquors of any kind are sold, manufactured, bartered, given awa}», or otherwise disposed of in violation of the law nuisances. This, however, would not be true in cases in which the defendant was charged with a specific sale of such liquors. Such evidence would only be' admissible where the defendant was charged with keeping liquors for sale at a certain place.

For the reasons hereinbefore given, the judgment of conviction is reversed, with directions to the county court of Muskogee county to sustain the motion in arrest of judgment and dismiss the ease.

BAKER and DOYLE. Judges, concur.


author: DOYLE, Judge,

text:
    M. W. Mask v. State.
    No. 377.
    Opinion Filed April 24, 1909.
    (101 Pac. 293.)
    1. INTOXICATING LIQUORS — Illegal Possession — Insufficient Evidence. Upon a trial for the offense of having possession of intoxicating liquors with the intention of violating the provisions of the prohibition law, where no positive testimony tending to show such possession was offered, and the only evidence offered to show possession was purely circumstantial and did not show actual or constructive possession of such liquors, as charged, held, that the evidence is insufficient to sustain the conviction.
    2, SAME. See opinion for facts held insufficient to support a conviction for -the offense of having possession of intoxicating liquors with the intention of violating the provisions of the prohibition law.
    (Syllabus by the Court.)

      Error from Kioiuci County Court; J. W. Mansell, Judge.

    M. W. Mask was convicted of having possession illegally of intoxicating liquors and brings error,
    llcvcrsed and remanded.
    The plaintiff in error, M. W. Mask (hereinafter designated defendant) was, on the 21st day of July, 1908, found guilty of having unlawfully in his possession intoxicating liquor, with the intention of selling the same, contrary to law, as charged in an information filed in said county court on the 10th day of July, -1908. On July 22, 1908, he was adjudged to pay a fine of $150 and costs, and be imprisoned for a period of 120 days in the county jail of said county. On August 21, 1908, he perfected his appeal to the Supreme Court of the state by filing with the clerk thereof his petition in error and case-made, together with proof of notice of appeal on L. D. Lewis, clerk of the county court, and H. L. Standeven, county attorney of ICiowa county. Said cause was duly transferred from said court to the Criminal Court of Appeals, and at the March term, 1909, said cause was submitted.

      F. M. Bradley, for plaintiff; in error.

      Fred 8. Caldwell, for - the State.
   DOYLE, Judge,

(after stating the facts as above). The offense for which the defendant was convicted was having in his possession on July 3, 1908, three bottles of whisky with the intention of violating the provisions of the prohibition law. It appears from the record that Charley Vaughn, the first witness for the state, was arrested on a. charge of selling whisky to one Kemp, on or about July 3, 1908, and while in jail was induced to turn state’s evidence against defendant. This witness is the son of an itinerant whisky peddler, who, with witness and another son, had been camping for a few weeks in a house on an adjoining lot to the home of defendant. The father disappeared about the time of his son’s arrest, leaving a horse for him to follow with. This witness appears to be afflicted with a poor memory and dense ignorance, not knowing his age, 'but thinks he is 18 or 19 years old. Tie testified to several criminating circumstances against defendant and that defendant sold a bottle of whisky to one Click, and positively testified that defendant made the sale for which witness was being held in jail. J. -W. Parham testified that he was sheriff of said county, and that he had searched defendant’s premises and found that a hole had been dug in the garden two or three feet deep, and had been filled up again. He further testified that, together with the city marshal, in making this search, he found three bottles of Brownwood whisky about 70 or 80 feet from defendant’s house, but on the Vaughn lot, and a bottle of the same brand of whisky was taken from one Kemp near there, and that at the time they arrested the witnesses Vaughn and Kemp. He further testified that he had searched defendant’s premises on two former occasions and did not find any liquors. W. M. Kemp testified that he bought the bottle of whisky taken from him at Vaughn’s from Charley Vaughn, gncl that he did not buy any whisky from defendant, or ever see defendant have any whisky. R. D. Click testified on behalf of defendant and denied that he had ever purchased whisky from defendant, as testified to by witness Vaughn., and that the only whisky he bought -was sold to him by old man Vaughn. Several character witnesses testified that defendant bore a good reputation as a law-abiding citizen in xhat community.

We believe that the evidence offered on behalf of the state wholly fails to prove the offense charged, for the reason that no actual or constructive possession by the defendant of intoxicating liquors, as alleged, has been shown. The evidence conclusively shows that the whisky found was found on the lot occupied by the father of the witness Vaughn, and that the bottle of whisky taken from Kemp, a Avitness for the state, Avas purchased from the witness Vaughn. The witness Click testified that the only whisky he purchased Avas from old man Vaughn. Upon this testimony, Vaughn, the witness to prove the unlawful intent, was clearly impeached. However, in prosecutions of this land, in order to prove an intent to violate the law, the possession of intoxicating liquors must first be shown. That was not done in this case. 'For this reason the evidence is insufficient to support the verdict.

g It is a rule of this court that verdicts which receive the approval of a trial judge will not be disturbed when supported by sufficient facts to make out the offense alleged. The trial judge has the witnesses before, him, hears their testimony, observes their manner and conduct upon the Avitness stand, and is in a position to judge of .t¡heir credibility and to weigh the case upon its merits. However, where the sole reliance of the prosecution is the testimony of a self-confessed criminal, who secures immunity by reason of such' testimony, and where the testimony fails to show all -the essential elements of the offense charged, we believe it is the duty of the trial court to set aside a verdict of guilty, as unwarranted by the evidence. Reviewing all the testimony, we do not believe it is of such cogent character as authorized the jury to believe that defendant Avas guilty of the offense charged, beyond a reasonable doubt. We deem it unnecessary to discuss the other questions arising in the case.

For the reasons hereinbefore stated, the judgment of the lower court is reversed, and the cause remanded.

FURMAN, PRESIDING Judge, and BAKER, Judge, concur.


author: BAKER, Judge,

text:
    C. P. Smythe v. State.
    No. A-5.
    Opinion Filed April 24, 1909.
    (101 Pac. 611.)
    1. INDICTMENT AND INFORMATION — Negativing Exceptions — Necessity. It is only when the exception in a penal statute is so incorporated i,n or with the enacting clause of such statute as to constitute a material .part of the definition or description of the offense that it need .be negatived in the information; otherwise it will be a matter of defense.
    2. SAME. A negative averment to the matter of an exception or ■ proviso in a penal statute is not requisite in an information, unless the matter of such exception or proviso enters into, and ■ becomes a material part of, the description of the offense.
    3. INTOXICATING LIQUORS — ’Enforcement Act — Constitutionality — Initiative and Referendum. Senate Bill No. 61 (chapter 69, p. 594, 'Sess. Laws 1907-08), known as the “Billups Prohibition Enforcement Act,” is not violative of section 57, art. 5, of Bunn’s Constitution of Okla.
    4. 1'NOICTMENT AND INFORMATION — Sufficiency — Certainty. An information which informs the accused of the offense with which he is charged with such particularity as will enable him to prepare for his trial and so defines and identifies the offense that the accused, if convicted or acquitted, will be able to defend himself in case he be indicted again for the same offense by pleading the record of such former conviction or acquittal, is sufficient as against demurrer.
    (Syllabus by the Court.)

      Error from Creek County Court; Josiah G. Davis. Judge.

    C. P. Smythe was convicted of illegally selling intoxicating liquors, and he brings error.
    Affirmed.

      Tbe plaintiff in error, who will, for convenience’s sake, be hereinafter referred to as the accused, was, on the 27th day of June, 1908, found guilty of unlawfully selling one pint of whisky to Stanley Seymour. The prosecution was predicated upon an information, which reads as follows:
    “In the name and by the authority of the state of Oklahoma, now comes L. B. Jackson, the duly qualified and acting county attorney, in and for Creek county, state of Oklahoma, and gives the county court of Creek county, state of Oklahoma, to know and be informed that C. P. Smythe did, in Creek county, and in the state of Oklahoma, on or about the 8th day of April, in the year of our Lord one thousand nine hundred and eight, and anterior to the presentment hereof, commit the crime of selling intoxicating liquor, in the manner and form as follows, to wit: Did sell to Stanley Seymour one pint of whisky, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state.”
    To this information the accused filed a general demurrer, •which was by the court overruled, .to which ruling the accused ■saved an exception. Thereupon the jury was impaneled and ■sworn, and the evidence presented on behalf of the state. The accused offered no evidence. The accused was found guilty as charged in the information, and in due time filed his motion for a new trial, alleging: (1) That the court erred in its decision in overruling the demurrer to the information; (2) because the verdict is contrary to law> for the reason that the information does not charge a public offense; (3) because the verdict is not sustained by the evidence, and is contrary thereto. The motion for a new trial was overruled, to which the accused duly excepted, and the court entered judgment on the verdict, sentencing the accused to pay a fine of $50, and be imprisoned in the county jail 30 days, and thereupon the accused filed a motion in arrest of judgment, setting up, in substance, that the facts alleged in the information are not sufficient to constitute a public offense, and that said information had been demurred to by the accused, and the demurrer overruled before the trial was commenced. Said motion in arrest of judgment was overruled, to which ruling the accused duly saved his exception, and thereafter, on the 27th day of June, 1908, the court below rendered judgment upon the verdict, and sentenced the accused to pay a fine of $50, with costs, and that he be committed in the county jail of Oreek county for a period of 30 days, and that, in the event of failure -to 'pay said fine, he be incarcerated a further period than the 30 days’ sentence sufficient to liquidate said fine and costs. To said judgment and sentence accused duly excepted, and brings this case to this court on appeal for the purpose of reversing said judgment. Briefs are filed on both sides.

      Sornberger & Williams, for plaintiff in error.
    — On necessity of negativing exceptions in indictment: 2'3 Cyc. 235; Young v. Territory, 8 Okla. 525; Parker v. Territory, 9 Okla. 109; State v. Pitzer, 23 Kan. 2'51; State v. Savage, 48 N. H. 484; Vogel v. Stale, 31 Ind. 64; Com. v. Byrne, 126 • Mass. 248; Gee Wo v. State, 36 Neb. 241; U. S. v. Cook, 84 U. S. 168; Dams v. State, 39 Ala. 521,

      Fred S. Caldwell, for the State.
    — On negativing exceptions in indictment: 22 Cyc. 344, and authorities cited in-note 41.
   BAKER, Judge,

(after stating the facts as above). The only question presented in this case is the sufficiency of the information, a copy of which- is contained in the statement of the case. The able counsel for the accused contend that said information is insufficient for two reasons: (1) Because the pleader neglected to negative the exceptions or provisos of the statute defining the offense in Senate Bill No. 61 (Sess. Laws 1907-08, p. 603, c. 69, art. 3), known as the “Billups Law,” which reads as follows:

^Section 1. .It shall be unlawful fox any person, individual or corporate, to manufacture, sell, barter, give away, or otherwise furnish except as in this act provided, any spirituous, vinous, fermented or malt liquors. * * * A violation of any^ provisions of this section shall be a misdemeanor and shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars and by imprisonment for not less than thirty days, nor more than six months. * * * *”

(2) Because the said Billups law is violative of section 57, art. 5, of the Constitution of this state, which reads as follows:

‘"Jibe powers of the initiative and referendum reserved to the people by this Constitution for the state at large, are hereby •further reserved to the legal voters of eyery county and district therein, as to all local legislation, or action, in the administration of county and district government in and for.their respective counties and districts.”

Counsel for the accused correctly maintain that the Billups act authorizes certain persons, or class of persons to sell intoxicating liquors under the restrictions contained in the act, that under said act persons may be appointed agents for the state for the purpose of selling intoxicating liquors, and that such persons, when so appointed, are authorized to sell as much as one pint of whisky, if sold under the provisions of said act. It is also contended by the accused that under the terms of said act such persons are exempted from the penalty of the act, and that a sale of a pint of whisky is not necessarily a violation of the act, and that under the restricting or prohibiting terms of the act, which provides “it shall be unlawful for any person to * * * sell * * * except as in this act provided,” and by reason thereof certain persons are excluded and excepted from the operation of said section, it is necessary for an information to contain averments negativing the class or kind of persons who are exempted from prosecution for selling liquor, if sold under the provisions of said act.

The statute' of this state respecting things necessary to be averred in the indictment are as follows: Section 222', Cr. Code (section 5358. Wilson’s Eev. & Ann. St. 1903), provides:

“The indictment must be direct and certain as regards: First. The party charged. Second. The offense charged. Third. The particular circumstances of the offense charged, when they .are necessary to constitute a complete offense.”

The statute just quoted is in consonance with the common- law. It seems a well-established rule of criminal pleading that the ex-i ceptions contained in a statutory definition of an offense must be negatived in an indictment or information. In other words, it mnst appear from the indictment or information that the person charged with a statutory crime, or a crime which is not malum in se, but merely malum prohibitum, which contains a clause exempting certain designated classes, is not included in such excepted class. This rule is founded upon the general principle that the information must contain a statement of those facts which • constitute an offense, under the statute defining such offense.

Justice Clifford, in delivering the opinion of the court in the case of United States v. Isaac N. Cook, found in 84 U. S. 168, 21 L. Ed. 538, lays down the following rule:

“(1) Where a statute defining an offense contains an exception, in the enacting clause of the statute, which is so incorporated with the language defining the offense -that it cannot be accurately and clearly described if the exception is omitted, an indictment founded upon the statute must allege enough to show that the accused is not within the exception. (2) Where the exception is not incorporated with the clause defining the offense, nor connected with it in any manner by words or reference, it is not a constituent part of the offense, but is a matter of defense, and must be pleaded or given in evidence by the accused.”

Another general rule that seems well settled by the authorities is this: That where a statute defining an offense contains an exception im the enacting clause which is so incorporated with the language defining the offense that the ingredients of the offense cannot be accurately and clearly described if the exception is omitted, the rules of good pleading require that an indictment or information founded upon the statute must' allege enough to show that the accused is not within the exception; but, on the other hand, if the language of the section defining the offense is sq entirely separable from the exception that the ingredients constituting the offense may be accurately and clearly defined without any reference to the exception, the pleader may safely omit any such reference, gs the matter contained in the exception is matter of defense, and must be shown by the accused. We are therefore confronted with the proposition: Does, or does not, the information in the case at bar define and charge a crime under the statute creating the offense, and does the information fully inform and point out to the accused the offense "which he is called upon to defend, and is it sufficiently definite and certain?

The question under consideration in this case is not free from diversity of authorities throughout the states. To harmonize some of the decisions would be difficult. In our examination we have carefully read all the eases cited in the briefs by both parties, together with such additional cases as we were able to find. We find the cases decided by the Supreme Court of the states of Kansas, New Hampshire, Indiana, and Massachusetts practically agree upon the proposition: That if there be any exception contained in the same clause of the act which creates the offense, the indictment or information must show negatively •that the defendant, or the subject of the indictment or information, does not arise within the exception. If, however, the exception or proviso be in a subsequent clause or statute, or, although in the same clause, yet, if it be not incorporated in the enacting clause by any words of reference, it is in that case matter of defense for the other party, and need not be negatived in the pleading. In the states named it is well settled that an information which charges that .the defendant sold intoxicating liquor without taking out, and then having, a license, as provided by the statutes, such information should negative the fact that the accused did have such license — citing State v. Thompson et al., 2 Kan. 432; State v. Pittman, 10 Kan. 593; State v. Pitzer, 23 Kan. 250; Howe v. State, 10 Ind. 423; Vogel v. State, 31 Ind. 64; Com. v. Thurlow, 24 Pick. (Mass.) 374; Com. v. Byrnes, 126 Mass. 248; Wendt v. State, 32 Neb. 182, 49 N. W. 351; State v. Ball, 27 Neb. 601, 43 N. W. 398.

The New Hampshire cases cited by the accused differ to some extent from the doctrine laid down in the cases just cited. We find in the case of State v. Abbott, 31 N. H. 434, the court held:

“Where the defendant was indicted for selling spirituous liquors, contrary to the statute, which provided that if any person, not being licensed, shall sell any spirituous liquor, wine, etc., he shall, on conviction, be fined, etc., and the exception was taken that the indictment was bad for not averring that the-defendant ■wilfully’ sold, held, that the offense consisted in the sale without license, and that, the term ‘wilfully’ not being contained in the statute, it was not necessary to be averred in the indictment. Where exceptions form a part of the enacting clause of a criminal statute, it is necessary to negative them in the indictment, in order that the description of the crime may, in all respects, correspond with tire statute. But where the exceptions are contained in separate clauses or provisions of the statute, they may be omitted in the indictment, and may be shown by the defendant as matters of defense”—citing State v. McGlynn, 34 N. H. 422; State v. Savage, 48 N. H. 484.

It will be observed that the cases just cited áre all in states where the sale of intoxicating liquor is lawful when made by a person holding a license authorizing traffic in, and the sale of, intoxicating liquors, and that the gist of the offense consists of a violation of the statutes making a license necessary before a lawful sale could be made. Therefore we believe the cases do not offer controlling authority upon a state that does not license the sale of intoxicating liquor, and therefore are not applicable to the case at bar. The state of Oklahoma, by the passage of the Billups law, makes it unlawful, except as provided in the clauses of the Billups law subsequent to the enacting clause, to sell intoxicating liquors at all.

Another class of cases is decided in states where the manufacture of intoxicating liquors is declared unlawful by all persons, except such as are duly appointed agents or officials of the state for the sale of such liquors. These cases hold that it is necessary, where an indictment charges the unlawful manufacture of liquor, that it must negative the manufacture of liquor except as authorized by the state authority; that the information must aver that the-person charged is not a person authorized by state authority to manufacture intoxicating liquor. This doctrine is held in the following cases: Davis v. State, 39 Ala. 521; State v. Savage, supra; State v. McGlynn, supra; State v. Thompson, supra; State v. Abbott, supra. It will be observed that in these cases the crime consists of manufacturing liquor without authority of law. Manufacture of liquor in the absence of authority is the criune sought to be punished, and it is therefore a part of the description of the crime to allege in the indictment that such authority was not granted the accused.

Still another class of eases, namely, where the exception or proviso contained in the statute creating the offense complained of is not in express terms found in the enacting clause, but only by reference to some subsequent or prior clause, or to some other statute; as where the words, “except as hereinafter mentioned,” or other words referring to matter out of the enacting clause, are used. The rule in these cases is that all exceptions, provisos, or modifications, whether applying to the offense or to -the persons which are incorporated in the enacting clause, should be negatived. Obviousty, if the exception in the.enacting clause is a part of the description, and is an essential ingredient of the offense sought to be prosecuted by information or indictment, such exception should be pleaded, as otherwise the indictment would not present the actual statutory accusation,' and would be defective for want of clearness and certainty.

This brings us to a consideration of tire cases sustaining the doctrine last named, prominent among which is the case of United States v. Cook, 84 U. S. 168, 21 L. Ed. 538, in which the court approves the early cases on this subject. Justice Clifford, writing for the court, says: First syllabus:

“Where a statute defining an offense contains an exception in the enacting clause of the statute which is so incorporated with the language defining the offense that the ingredients of the offense cannot be accurately and clearly described iif the exception is omitted, an indictment found upon the statute must allege enough to show that the accused is not within the exception.”

Second syllabus:

“Where the exception is not incorporated with the clause defining the offense, nor connected with it in any manner bjr words of reference, it is not a constituent part of the offense, but is a matter of defense, and must be pleaded or given in evidence by the accused.” ,,

Another very instructive case in point is that of Territory v. Scott, 2 Dak. 212, 6 N. W. 435. In this case Scott was prosecuted on an indictment charging him, under the statute of said territory, with setting fire to a prairie. The statute in question being in three sections (Rev. Codes 1877, p. 803): Section 1 provides:

“That if any person or persons shall set or cause to be set on fire any woods, marsh, or prairie, or any grass or stubble lands in the months of September, October, November, December, January, February, March, April, May or June, except as hereinafter provided, such person or persons shall be deemed guilty of a misdemeanor.”

Second section provides:

“That for the purposes of destroying any grass or stubble that may be on any piece of land at the time any person or persons commence to break or plow the same, it shall be lawful for such person or persons to set the same on fire at any time in the year: Provided, that at the time of setting such grass or stubble on fire there shall be a strip of land well plowed or burned over at least fifty feet in width, completely encompassing the place where such fire is set.”

Third section provides:

“That if any fire set as provided in section 2 of this act, should, by accident, and without any fault or neglect of the person or persons setting the same, get beyond his or their control, such person or persons shall be liable, as provided by section 1 of this act, for all damages done by said fire, and not otherwise. But if such fire should by negligence, carelessness, or be intentionally permitted to spread beyond the bounds of said strip of land mentioned in section 2, then the person or persons setting such fire shall be liable, both civilly and criminally, as provided in section 1 of the act.”

The indictment in this case charges that Scott, on a certain day in the month of October, did wilfully and unlawfully set fire to a certain stubble land, contrary to the statute, etc. To this indictment defendant demurred, claiming that the fact stated herein did not constitute a public offense, because it charges the defendant with having wilfully set on fire certain prairie and stubble land, but does not charge that said fire was set without having a strip of land luell plowed or burned over at least 50 feet in width completely encompassing the place where the fire was set. The demurrer was overruled; defendant convicted and sentenced. Justice Kidder said:

“If there is an exception in the enacting clause, the party must negative the exception, and state in the indictment that the defendant is not within it; but, if there be an exception in a subsequent clause or a subsequent section of the statute, it is a matter of defense, and is to be shown by the other party. The rule is founded on the general principle that the indictment must contain the statement of those facts which constitute an offense under the statute. A pima facie case must be stated; and it is for the other party, for whom matter of excuse exists, to bring it forward in his defense. In sajdng that an exception must be negatived when made in the enacting clause, reference is not made to sections of the statute as they are divided in the act; nor is it meant that, because the exceptions are contained in the section containing the enactment, it must for that reason be negatived. That is not the meaning of the rule. The question is whether the exception is so incorporated with, and becomes a part of, the enactment as to constitute a part of the definition or description of the offense; for it is immaterial whether the exception or proviso be contained in the enacting clause or section, or be introduced in a different manner. It is the nature of the exception, and not its location, which determines the question. Neither does the question depend upon any distinction between the words ‘provided’ or ‘except’ as they may be used in the statute.”

Referring to the case of United States v. Cook, supra, this learned justice says:

“In the more recent case of United States v. Cook this question is elaborately discussed, and all the leading cases bearing upon the question under discussion, from Jones v. Axen, 1 Lord Raymond,. 120, down, were examined and commented upon by the learned justice who delivered the opinion; and, in our judgment, it is decisive of the question under consideration.”

In applying the rule laid down iin United States v. Cook, supra, said learned justice further says:

“To illustrate: The offense in section .1 of the Code, supra, is clearly defined, and it is so entirely separable from the exception in section 2 that all the ingredients constituting it may be accurate]}" stated without reference to the exception; i. e., if any person shall set on fire any prairie lands in either of the months in the year (except July and August), he shall be deemed guilty. This is simple and easy of comprehension without reference to matters dehors. The second is a substantive section ; i. e., any person, at the time he desires to break his land for the purpose of destroying the stubble thereon, may set the same on fire any time in the year, provided he shall then have 50 feet in width plowed or burned over encompassing the place where the fire is set. Section 3 is independent, except it refers to sections 2 and 1 as follows: If the fire set as provided in section 2' should by negligence, etc., be permitted to spread beyond the bounds of the plowed or burned strip, then the person setting the fire shall be liable criminally as in section 1. To illustrate, further, the mode of procedure in the trial of a prosecution like the one at bar: The defendant is arraigned and pleads not guilty to the indictment. The prosecution introduces evidence which tends to prove the allegations therein. The defendant defends, against such proof, that at the time he set the fire he had some stubble-land he wa's desirous of breaking, and, that he might lawfully set the fire, he burned over a strip of land, at least 50 feet in width, completely encompassing the place where the fire was' set. The prosecution replies to this that the defendant intentionally, or by negligence or carelessness permitted the fire to spread beyond the bounds of such strip.”

The indictment in this case was held sufficient, and the judgment in the court-below affirmed.

To epitomize the leading and well-considered cases, the general rule can well be stated to be that, when the subject of any exception is found in the enacting or prohibitory clause, it must be excluded by averment in the information; but, if it be found in a separate substantive clause, or in a subsequent statute, and is not an essential part of the description of the offense, it is matter of defense, and need not be negatived. The above doctrine is fully sustained by the Supreme Court of the United States in the cases above cited, and in United States v. Clarke (D. C.) 38 Fed. 500; United States v. Felderwald (C. C.) 36 Fed. 490; United States v. McCormick. 1 Cranch, C. C. 593, Fed. Cas. No. 15,663; and in various states in Mosby v. State, 98 Ala. 50, 13 South. 148; Davis v. State, 39 Ala. 521; Matthews v. State, 24 Ark. 484; Bone v. State, 18 Ark. 109; Brittin v. State, 10 Ark. 299; State v. Powers, 25 Conn. 48; Williams v. State, 89 Ga. 483, 15 S. E. 552; Metzker v. People, 14 Ill. 101, and cases therein cited; State v. Kimmerling, 124 Ind. 382, 24 N. E. 722, and cases ciited; State v. Williams, 20 Iowa, 98; Com. v. McClanahan, 2 Metc. (Ky.) 8; State v. Lyons, 3 La. Ann. 154; State v. Gurney, 37 Me. 149; Com. v. Maxwell, 2 Pick. (Mass.) 139; People v. Decarie, 80 Mich. 578, 45 N. W. 491; State v. Doerring, 194 Mo. 398, 92 S. W. 489, and many eases therein cited; State v. Price, 71 N. J. Law, 249, 58 Atl. 1015; People v. Stedeker, 175 N. Y. 57, 67 N. E. 132; State v. Pool, 106 N. C. 698, 10 S. E. 1033; State v. Connor, 142 N. C. 700, 55 S. E. 787; Seville v. State, 49 Ohio St. 117, 30 N. E. 621, 15. L. R. A. 516; Hirn v. State, 1 Ohio St. 16; Billigheimer v. State, 32 Ohio St. 435; State v. Paige, 78 Vt. 286, 62 Atl. 1017; State v. Norton, 45 Vt. 258.

In the last-cited ease Justice Boyce says:

“If the exception is distinct from-the enacting clause, or. from that part of the statute which creates and describes the oifense, it becomes matter of defense, and it need not be negatived that the respondent is within the exception.”

It will be seen from reading the “Billups Act” that there is no exception in the enacting clause which is descriptive of the offense charged against the accused in this case, or the omission of Avhiich would render the information insufficient to advise the accused of the exact crime he is called upon to defend. Hence the last-named class of eases, as shown by the authorities cited, apply with much force to the case at bar. The information charges that the accused “did sell Stanley Seymour one pint of whisky, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state.”

Counsel for accused, in support of their contention, cite the cases of Young v. Territory, 8 Okla. 525, 58 Pac. 724, and Parker v. Territory, 9 Okla. 109, 59 Pac. 9—both rape cases. These cases hold that an indictment for rape, under the statutes of the territory of Oklahoma, must contain the averment “that the female on whom the crime was committed was not the wife of the person accused of the crime.” Section 2251, Wilson’s Rev. & Ann. St. 1903, defining the crime of rape, provides:' “Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator. * * *” It requires no argument to see that the exception or proviso is clearly an ingredient part of the offense charged. The same is true of most of the cases cited by the accused. Applying the great weight of authorities to the information in the case at bar, we find the enacting clause of the statute, upon which the prosecution in this case is based, does not contain an exception or proviso which is either descriptive of the offense charged, or an ingredient part thereof. There is therefore no necessity for negativing the same, and the contention of the accused is not sustained.

Counsel for the accused further contend and urge as a second ground of demurrer that the Billups law is violative of section 57, art. 5, of the Constitution of this state, and therefore void. Section 57 reads as follows:

“The powers of the initiative and referendum reserved to the people- by this Constitution for the state at large, are' hereby further reserved to the legal voters of every county and district therein, as to all local legislation, or action, in the administration of county and district government in and for theiir respective counties and districts.”

The act of Congress enabling the people of the territory of Oklahoma and of the Indian Territory, to form a Constitution and state government, and be admitted into the Union, etc., provides that the manufacture, sale, barter, giting away, or otherwise furnishing intoxicating liquors within those parts of said proposed state known as the Indian Territory and the Osage Indian Reservation, etc., is prohibited for a period of 21 years from the date of admission into the Union, and for the violation thereof prescribes a penalty of not less than $50 fine, and imprisonment for not less than 30 days for each offense. Act June 16, 1906, c. 3335, 34 Stat. 267. Said act also provides that the Legislature of the state may provide bj' law for dispensing intoxicating liquors for medicinal purposes, etc. The Enabling Act also authorizes the constitutional convention to submit to the people of ■the proposed new state, for their ratification or rejection by ballot, the proposition whether or not the prohibition of the manufacture, sale, etc., of intoxicating liquors should be state-wide. Such proposition was submitted to the people of said proposed state, and by them ratified, thereby extending the prohibitory proposition over the entire state, and the same is now in full force throughout the entire state. The powers of the initiative an'd referendum reserved to the people under section 57, Bunn’s Const., was not intended to delegate to the people of any county or district within the state the right to legislate by initiative and referendum upon the subject of the manufacture, sale, etc., of intoxicating liquors therein. Said section was intended to vest in the people of every county and district the right of the initiative and referendum provisions of. the Constitution upon all questions of a local nature only. Therefore it does not lie within the power of any county or district in the state to contravene the provisions of the Constitution applicable to the prohibition of the sale of intoxicating liquors within such county or district. This court is clearly of the opinion that the so-called “Billups Law,” taken as a whole, is not violative of an3r of the provisions of the Constitution of the state, and for that reason the second ground of demurrer in this case is not well taken.

This court does not want to be understood as holding that the information in this case is a model of perfection, by any means. On the contrary, it is loosely drawn, and imperfect, and this court dislikes very much to in any way encourage careless pleading; on the contrary, it is the desire that prosecuting officers, in the framing of informations and indictments, should exercise the greatest care, and incorporate therein all the legal requirements, and to the extent that they do so they will reflect their legal learning and ability as prosecutors. The information in the ease at bar does inform the. accused of the offense with which he is charged with.sufficient particularity to enable him to prepare for his trial. It also defines the offense to such an extent that, if the accused is convicted or acquitted, he will be_able to defend himself, in case he be indicted again for the same offense, by pleading -the record of such conviction or acquittal. . Therefore, as against demurrer, we are compelled to hold the information sufficient. Bearing in mind that the statute of this state prohibits this court from reversing the judgment of the court below for technical reasons, we do not go to the extent of abridging the substantial rights of the accused.

Failing to find in the record that the substantial rights of the accused in the case at bar have been disregarded, the judgment of the court below is affirmed, and the sheriff of Creek county is ordered to execute the judgment of the court below without unnecessary delay.

FURMAN, Presiding Judge, and DOYLE, Judge, concur.