Antonelli v. State
| Decision Date | 22 March 1910 |
| Parties | ANTONELLI v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
The district courts of the state, under section 18 of the Bill of Rights, have the implied jurisdiction to receive and dispose of indictments for misdemeanors, and the proper exercise of this jurisdiction is to transfer the cases to the court having jurisdiction to try and determine the same.
An indictment alleging the unlawful sale of intoxicating liquor in Pittsburg county is sufficient as to venue. It is not necessary that the indictment allege the particular place in Pittsburg county where the liquor was sold.
An indictment which alleges that the defendant did unlawfully sell, barter, give away, and otherwise furnish intoxicating liquor, beer, ale, and wine is not subject to demurrer for duplicity.
When the word "beer" is used without restriction or qualification, it denotes an intoxicating malt liquor, and being included by the constitutional provision among intoxicating liquors, one who sells beer has the burden of proof to show it is not intoxicating, if he so claims.
Error from Pittsburg County Court; R. W. Higgins, Judge.
Paul Antonelli was convicted of selling intoxicating liquor, and brings error. Affirmed.
J. G Harley, for plaintiff in error.
Fred S Caldwell, for defendant in error.
Counsel for defendant insist that because section 12, art. 7, Const. (section 183, Bunn's Ann. Ed.), gives to the county court exclusive jurisdiction to try misdemeanor cases of this character, the district court was without jurisdiction to receive the indictment in this case, and therefore the county court did not acquire jurisdiction on removal of the case from the district court to the county court. With this contention we cannot agree. Section 18 of the Bill of Rights (section 27, Bunn's Ann. Ed.), after providing for a grand jury in the district court, contains this provision: "When so assembled such grand jury shall have power to investigate and return indictments for all character and grades of crime, and such other powers as the Legislature may prescribe." Under this section the district court had the implied jurisdiction to receive and dispose of the indictments returned by the grand jury, and a proper exercise of this jurisdiction was to transfer the case to the court having the jurisdiction to try and determine the same.
It was urged on demurrer that the indictment was too indefinite and uncertain, in this: that it does not sufficiently advise the accused in what place in Pittsburg county the liquors are alleged to have been sold. The only allegation of place is that the offense was committed in Pittsburg county, state of Oklahoma. The weight of modern authority is to the effect that this is sufficient under a statute of this character. If the defendant had been indicted under a statute prohibiting dramshops, or the sale of liquor within a certain distance of schools or churches, or within certain prohibited districts, then there would have been some reason for the allegation as to the exact place, but, under this statute, he could not lawfully sell at any place within Pittsburg county. Therefore he could not have been misled by the failure of the indictment to state in what particular place he did violate the law.
Another reason urged for reversing the lower court is that the indictment charges more than one offense. The charging part of the indictment is as follows: "One Paul Antonelli did, then and there, unlawfully sell, barter, give away, and otherwise furnish intoxicating liquor, beer, ale, and wine to one Joe Match." The provision of the Constitution under which this indictment was returned is as follows: "Any person, individual or corporate, who shall manufacture, sell, barter, give away, or otherwise furnish any intoxicating liquor of any kind, including beer, ale, and wine," etc. The objection to this part of the indictment was raised by demurrer, which the lower court overruled. We find no error in the action of the court in overruling the demurrer. In the case of State v. Nolan, the Supreme Court of Rhode Island (15 R.I. 529, 10 A. 481) passed on a similar objection under a statute which provides: "If any person shall offer to sell, sell, or suffer to be sold, by any person by sample or otherwise, any ale, wine, rum, or other strong or malt or intoxicating liquors," etc. The court in passing on this question said: "Where several cognate acts are forbidden, disjunctively, the complaint or indictment may ordinarily charge them all conjunctively in a single count."
In the case of State v. Schweiter, 27 Kan. 499, a similar question was presented to the Supreme Court of Kansas. The chief justice in delivering the opinion of the court used this language: ...
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