Cox v. State

• Decision Date: 02 November 1909
• Citation: 104 P. 1074,3 Okla.Crim. 129,1909 OK CR 134
• Parties: COX et al. v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

104 P. 1074

3 Okla.Crim. 129, 1909 OK CR 134

COX et al. v. STATE.

Court of Criminal Appeals of Oklahoma

November 2, 1909

Syllabus by the Court.

(a) No indictment or information is insufficient by reason of a defect or imperfection in the matter of form which does not tend to prejudice the substantial rights of the defendant upon the merits.

(b) While it is best for an information to have a caption, yet its absence or errors in it are not fatal to the information.

(a) Upon appeal the brief must state the precise error complained of, and enough of the record to enable this court to understand the question presented, and also state the page of the record upon which matter complained of will be found, and must also clearly state the argument, and cite the authorities relied upon, or any supposed errors will be treated as waived, unless they are fundamental.

(a) Objections should be sustained to all questions, the answers to which could not affect the matter at issue.

(b) The court will take judicial knowledge of the fact that beer is intoxicating, and its sale is prohibited under our Constitution and statutes.

(a) The civil law of agency has no application violations of criminal law.

(b) All persons who are concerned in the commission of an offense are "principals;" and should be prosecuted and convicted as such, and it is immaterial as to whether they are present when the crime is actually committed.

(c) Where a person is the proprietor of a joint, and keeps beer and whisky there, and has a United States license to pursue the business of selling liquor, he cannot escape responsibility for a sale made by his barkeeper upon the ground that he was not present when the sale was made.

(a) For a properly verified information for selling intoxicating liquors, see opinion.

Appeal from District Court, Rogers County; Archibald Bonds, Judge.

C. B Cox and others were convicted of an unlawful sale of intoxicating liquor, and they appeal. Affirmed.

H. Tom Kight, for appellants.

FURMAN P.J.

1. In the motion for a new trial the sufficiency of the information is challenged. The information is as follows:

"In the District Court within and for Rogers County, State of Oklahoma, Second Judicial District. Before Hon. T. L Brown, Judge.

"State of Oklahoma, Plaintiff, v. Tom Smith and B. C. Cox and John Thurman, Defendants. Information.

"Be it remembered that Wm. M. Hall, county attorney in and for Rogers county, state of Oklahoma, who prosecutes in the name and by the authority of the state of Oklahoma, comes herein in person into the county court of said county this 1st day of February, 1908, and upon the affidavit of Wm. McClain, duly subscribed and sworn to by him as provided by law, and the same is hereto attached, marked 'Exhibit A,' and made a part hereof, gives the court to understand and be informed that on the 23d day of January, A. D. 1908, in Rogers county, state of Oklahoma, and one B. C. Cox, Tom Smith, and John Thurman, late of said county, and within the jurisdiction of this court then and there being, did then and there willfully, unlawfully, sell one pint of intoxicating liquor to Dave Coker contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma.

"Wm. M. Hall,

"County Attorney, Rogers County.

"State of Oklahoma, County of Rogers--ss.:

"Personally appeared before me, Archibald Bonds, judge of the county court within and for the county of Rogers, state of Oklahoma, W. M. Hall, of lawful age, who, being first duly sworn upon his oath, states that he is the county attorney of said county, that he has read the foregoing information and knows the contents thereof, and that the facts and allegations therein contained are true. W. M. Hall.

"Subscribed and sworn to before me this 1st day of Feb., 1908. Archibald Bonds, County Judge.

"State of Oklahoma, County of Rogers--

"I, W. M. McClain, after being first duly sworn, deposes and says that my name is W. M. McClain. I live in Claremore, Okl. I am 37 years of age. On last Friday a week ago, on or about January 23, 1908, I, in company with Dave Coker, went into the place of business of Smith and Cox on Third street in the town of Claremore, Okl., and I saw Dave Coker buy of John Thurman, an employé of Smith & Cox, one pint of what I took to be whisky, for which he paid him $1. We afterwards divided the contents of the bottle, and I took my half home as a medicine for my family. I told Coker that I wanted some good whisky, and we would go up to Cox's to get it, and I saw him pay John Thurman for the same, and saw Thurman give him the bottle. Dave Matthews was present at the time, and others whose names I do not now recall. The contents of the bottle I did not taste, but it looked like whisky and smelled like whisky, and I bought it for whisky, or rather had Dave Coker buy it for me for whisky. I gave Dave Coker a half dollar, and I saw Thurman take something and pass it along under the counter, and I saw Coker make the motion as if to pay for the same. Wm. McClain.

"Subscribed and sworn to before me this 1st day of February, 1908. Lee Settle, Clerk of the District Court."

It is first claimed that the information upon its face discloses the fact that it was presented in the district court of Rogers county, before Hon. T. L. Brown, judge, and that the record does not show that it had ever been transferred to the county court. Counsel for the defendant rely upon the first paragraph of section 5357, Wilson's Rev. & Ann. St. 1903, to sustain their contention, which is as follows: "The indictment must contain: First. The title of the action, specifying the name of the court to which the indictment is presented, and the name of the parties." The second section of section 5365, Wilson's Okl. St. is as follows: "The indictment is sufficient if it can be understood therefrom: First. That it is entitled in a court having authority to receive it, though the name of the court is not stated." Section 5366, Wilson's Okl. St., is as follows: "No indictment is insufficient, nor can the trial judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits." So we see that by the express language of the statute the omission of any matter of form from an indictment, which does not tend to the prejudice of the substantial rights of a defendant upon the merits, does not affect the sufficiency of an indictment. It is best to have a correct caption to an indictment or information, but it does not add to or take from the charging part of the indictment or information. Its presence neither gives to the defendant any additional rights, nor does its absence impose any additional burdens upon him. If it appears that the indictment is filed in a court having jurisdiction of the offense charged, the purpose of the law has been accomplished. The caption of the information now before us is no part of the information itself. There is nothing except this caption to indicate that this information was ever filed in the district court of Rogers county. This was simply a clerical error on the part of the county attorney. The record shows that the information was filed and presented in the county court, which had jurisdiction of the offense charged. This was sufficient.

2. The second assignment of error is as follows: "That the court erred in admitting testimony on the part of the defendant in error, as shown by the transcript filed herewith." The brief does not present any questions asked or answer thereto under this assignment. It is the duty of counsel, when they bring a case to this court for review, to state in their brief the precise error complained of, and to correctly copy in the brief enough of the record to enable this court to understand the question presented. They should also give the page of the transcript upon which the matter complained of will be found. This court is too busy to undertake to hunt through haystacks for needles. The brief should also clearly present their arguments and cite the authorities relied upon. Not a single question asked by counsel for the state or answer thereto, is presented under this assignment, and no motion is made of any exceptions to any such question or answer. No argument is made, and no authorities are cited. If any errors were committed by the court in the admission of evidence against the defendant, they are therefore waived.

3. The third assignment of error is as follows: "The court erred in ruling out and excluding competent and legal evidence on the part of the plaintiff in error, as shown by the transcript filed herewith." The brief complains of only one ruling of the court in exclusion of evidence. When the defendant was on the stand testifying in his own behalf his counsel asked him the following question: "You said some time last...