Brown v. State

• Decision Date: 03 February 1954
• Docket Number: No. A-11888,A-11888
• Citation: 266 P.2d 988
• Parties: BROWN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 988

266 P.2d 988

BROWN v. STATE.

No. A-11888.

Criminal Court of Appeals of Oklahoma.

Feb. 3, 1954.

Syllabus by the Court.

1. The contention that Section 1 of Title 37 O.S.1951 makes it a crime for one to purchase intoxicating liquor, as well as making it a crime to sell intoxicating liquor is not sustained by any language in the title to the Act, See Section 1 Art. 3 of Chap. 69 S.L.1907-1908, or by the language in the body of the Act.

2. In Oklahoma no act is a crime unless made so by statute. Tit. 21 O.S.1951 § 2.

3. Uncorroborated testimony of an officer, who purchased liquor from defendant, respecting sale was sufficient to sustain conviction for unlawful sale of intoxicating liquor, against contention that such testimony was that of an 'accomplice' and that corroboration was necessary for conviction.

4. The purchaser of intoxicating liquor at an illegal sale is not an 'accomplice' of seller and purchaser's testimony is not required to be corroborated to sustain conviction for the sale of such liquor.

W. C. Henneberry, Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

POWELL, Presiding Judge.

The plaintiff in error, hereinafter referred to as defendant, was tried in the court of common pleas of Tulsa County on information charging him with having sold a one-half pint of whiskey to Fred Stapp, deputy sheriff. A jury was waived. Defendant was found guilty and sentenced to thirty days in jail, and to pay a fine of $50. Appeal has been perfected to this court.

There are a number of assignments of error set forth in the petition in error, but counsel urged only two propositions for reversal, stating: 'These were the only assignments of error that, in my opinion, have any merit and I wish to rely particularly upon the last one of the above.' They read:

'First: 'That the court erred in permitting the State to introduce testimony over the objection of the defendant.'

Second: 'That the judgment and sentence of the court is contrary to the law and the evidence.'

Counsel argues under the above specifications of error simply that the evidence of Deputy Sheriff Fred Stapp constituted the only evidence to support the offense charged, and that in that said officer testified that he called at the defendant's place in Tulsa and stated to defendant that he wanted to purchase a half-pint of whiskey and thereafter received a half pint of Old Forrester, for which he paid defendant, that the officer then became an accomplice of the defendant and that the rule being that the testimony of an accomplice must be corroborated in order to support a conviction, where there is no other evidence of guilt, defendant's demurrer to the evidence should have been sustained.

If Officer Stapp was an accomplice of the defendant in the purchase from him of the half pint of whiskey shown to have been sold the officer, the contentions of the accused would have to be sustained, for though the record discloses that Officer Stapp was accompanied by Deputy Floyd Jordan, he did not testify. (The defendant did not testify and offered no evidence.) See Tit. 22 O.S.1951 § 742, providing 'A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.'

Counsel points out that the defendant was prosecuted under Section 1 of Title 37 O.S.1951. This section was originally adopted as Section 1 of Article 3 of Chapter 69, Session Laws 1907-1908. The language was the same in the Act as originally adopted. So far as we are advised, this is the first time it has ever been contended before this court that it was the intention of the Legislature by the wording of the above statute to make the purchase of liquor a crime. If such had been the intent it could have easily and clearly been expressed. But a consideration of the title to the Act may be enlightening, because the body of an Act cannot be broader than the title. Const. Art. 5, § 57. And of course where the body is broader than the title, then the Act is unconstitutional as to such provisions. This is a correct statement of the principle, although any deficiency in the title would not now invalidate the section since its adoption as a part of the Codes of 1941 and 1951. Still as suggested by the Attorney General, 'the title does remain as a very valuable aid in interpreting the body of the Act and determining the intent of the legislature.'

The title [Section 1 of Art. 3 of Chap. 69, S.L.1907-1908] reads:

'An Act to establish a state agency, and local agencies for the sale of intoxicating liquors for certain purposes: and providing for referring the same to the people; prohibiting the manufacture, sale, barter, giving away or otherwise furnishing of intoxicating liquors, except as herein provided; providing for the appointment of an attorney, and for the enforcement of the provisions of this act; making an appropriation and declaring an emergency.'

But counsel quotes a portion of Section 1 of Title 37 O.S.1951, and italicizes the phrases that he contends sustain his position, advanced in this case. We quote:

'It shall be unlawful for any person, individual or corporation to furnish, except as in this chapter provided, any spirituous, vinous, fermented or malt liquors, or any imitation thereof or substitute therefor, or to manufacture, sell, barter, give away or otherwise furnish any liquors * * * or to solicit the purchase or sale of any such liquors, either in person or by sign, circular, letter, card, price list, advertisement, or otherwise, or to distribute, publish or display any advertisement, sign or notice where any such liquor may be manufactured, bartered, sold, given away, or otherwise furnished, or to have the possession of any such liquors with the intention of violating any of the provisions of this chapter. * * *'

Counsel seeks to avoid the effect of many cases from this court and other courts on the question, by asserting that the above clause in italics, as well as other statutes, to be referred to, were never prior hereto considered or tested in connection with the proposition now raised.

It is the argument of the Attorney General that the above clause refers to one who would solicit for a bootlegger in the sale of intoxicating liquors, and points out that the case of Steen v. State, 1910, 4 Okl.Cr. 309, 111 P. 1097, illustrates his point. The sixth paragraph of the syllabus reads:

'One who solicits a person to purchase liquor, and pilots him to another who has the liquor and sells it, assists in making the sale, and is indictable and punishable as a principal in the transaction.'

It is the conclusion of this court that there is nothing in the title to Chap. 69, S.L.1907-08 or any language in the body of the Act that makes the purchase of intoxicating liquor a crime. It must not be overlooked that no act is a crime unless made so by statute. Tit. 21 O.S.1951 § 2. We think this construction of the phrase of the statute in question reasonable. It certainly cannot be contended that the construction defendant seeks to have placed on the statutory provision in question is not free from doubt. And we have said that in case of well-founded doubt as to whether an act is an offense, the act must be held not criminal especially when not malum in se. State v. Weindel, 52 Okl.Cr. 25, 2 P.2d 599; Hisel v. State, Okl.Cr., 264 P.2d 375.

But above this, counse...