Ex parte Bales

• Citation: 274 P. 485,42 Okla.Crim. 28
• Decision Date: 09 February 1929
• Docket Number: A-7276.
• Parties: Ex parte BALES.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

274 P. 485

42 Okla.Crim. 28

Ex parte BALES.

No. A-7276.

Court of Criminal Appeals of Oklahoma

February 9, 1929

Syllabus by the Court.

Chapter 2 of the Session Laws of Oklahoma of 1923 is unconstitutional and void as being too indefinite and uncertain to define the crime of murder.

Original application by A. H. Bales for a writ of habeas corpus. Writ granted.

Mathers & Mathers, of Oklahoma City, for petitioner.

Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.

EDWARDS P.J.

This is an original proceeding in habeas corpus. Petitioner alleges that he is unlawfully restrained of his liberty in the county jail by the sheriff of Oklahoma county; that the cause of said restraint is that a prosecution for murder upon a preliminary information was instituted before a justice of the peace of Oklahoma City and petitioner was held thereunder without bail; that the prosecution attempted to be carried on against him is under the provisions of chapter 2, Session Laws 1923, and that the same is unconstitutional, and the restraint of petitioner therefore illegal.

Chapter 2, Session Laws 1923, is as follows: "Section 1. Any person who sells, gives away, or otherwise furnishes any liquor, preparation or compound, for beverage purposes, and which results in death, shall be guilty of murder."

The preliminary complaint alleges that petitioner, on a named date, did sell and furnish to one E. J. Vernier certain intoxicating liquor, to wit, whisky, for beverage purposes and which whisky so furnished resulted in the death of said Vernier.

Twenty-two reasons are assigned why this act is unconstitutional and void. Various of these reasons require no discussion. Several of them, however, are directed to the contention that this act is vague and uncertain and is an attempt to make, what might be an entirely innocent act, criminal. The constitutionality of this statute was presented to this court in case of Ex parte Lucas (Okl. Cr. App.) 243 P. 990, but that case was disposed of on a question of jurisdiction and the constitutionality of the act was not expressly determined. The court did say, however, that it would require a construction in the nature of judicial legislation to make the act effective, and that: "As the statute now reads if it were strictly construed, one who sold to another sweet cider might be guilty of murder. One might suffer death from drinking too much coffee, Coca-Cola, or buttermilk. It would be a cruel incongruity and injustice to adjudge one guilty of murder who, without any wrongful motive or intent, sold or gave to another an innocent beverage, the imbibing of which caused the death of such other. The court, then, must either read into the law what the Legislature intended, or declare it unconstitutional and void. A decision upon that point is unnecessary in this case, because of another point decisive of the petitioner's right to be freed on habeas corpus. But, in order to obviate diverse interpretations, this act should be clarified and made more specific by legislative amendment."

No other state, so far as we can learn, has a similar statute. Ohio has a law, section 4, Senate Bill No. 28 (Laws 1923, p 49), as follows: "The term 'alcohol' shall mean ethyl alcohol. Whoever knowingly sells, furnishes or gives away wood alcohol or any preparation or compound containing wood alcohol or any intoxicating liquor to be used for beverage purposes and death results therefrom shall be guilty of murder in the second degree and shall be imprisoned in the penitentiary during life."

An act of the Illinois Legislature of 1923 (Laws 1923, p. 317) reads: "Section 1. Whoever knowingly and wilfully sells barters or furnishes any wood alcohol, or...