Ex parte Spencer
| Decision Date | 02 April 1912 |
| Citation | 122 P. 557,7 Okla.Crim. 113,1912 OK CR 133 |
| Parties | Ex parte SPENCER. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where an information charges the defendant with having in his possession intoxicating liquors with the intention of violating the provisions of the prohibitory liquor laws of Oklahoma, such information states an offense against the laws of this state.
Where a defendant goes to trial, and for the first time objects to the information or indictment, when the state attempts to introduce testimony thereunder, or upon appeal, or by habeas corpus, the objection should be overruled if by any intendment or presumption the information or indictment can be sustained.
Formal defects in an information cannot be presented by habeas corpus proceedings.
Petition of Jim Spencer for writ of habeas corpus. Writ denied.
Hargis & Sams, of Pawhuska, for petitioner.
The petition for a writ of habeas corpus discloses the fact that the petitioner is confined in the county jail of Osage county, in the custody of the sheriff of said county, under and by virtue of a judgment and sentence rendered in the county court of said county against him for a violation of the prohibitory liquor laws of the state of Oklahoma. The punishment of petitioner was assessed at a line of $150 and 90 days confinement in the county jail. The petitioner claims that his conviction was illegal and void because the information upon which it was obtained fails to charge any offense against the laws of the state. The charging part of the information is as follows: "That on the 3d day of June, one thousand nine hundred and eleven, in the said county of Osage, state of Oklahoma, the said defendant, Jim Spencer, then and there being, did then and there wrongfully and unlawfully have in his possession certain intoxicating liquor, to wit, one quart of whisky, one quart of gin and about thirty pints of beer, with the intention of violating the provisions of the prohibitory liquor laws of the state of Oklahoma." The objection to the information is that it does not state what section of the prohibitory liquor law petitioner intended to violate. An examination of the statute will show the offense which it creates is described in the following language: "*** Or to have the possession of any such liquors with the intention of violating any of the provisions of this act."
The information alleges that the petitioner had possession of the intoxicating liquors therein described "with the intention of violating the provisions of the prohibitory liquor laws of the state of Oklahoma." This language is certainly as broad as the statute. It charged the petitioner with having possession of such liquors with the intention of violating all of the provisions of the prohibitory liquor laws of the state. The first case coming before this court involving the question here presented was that of Michael v. State, 2 Okl. Cr. 703, 103 P. 1069. In that case the charging part of the information was as follows: "That Jack Michael in the aforesaid county, on the 2d day of May A. D. 1908, in the county of Craig, state of Oklahoma, then and there being, did then and there willfully and unlawfully have in his possession fermented and intoxicating liquors, to wit, four pints of whisky, with intent to use the same in violating the law, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma." In that case it is seen that the information simply charged the intent upon the part of the defendant to use the liquors in his possession in violating the law. The defendant demurred to the information upon the ground that it did not state facts sufficient to constitute a violation of the law. This demurrer was presented at the proper time, and was overruled, and the defendant reserved an exception. Defendant was convicted. Upon...
To continue reading
Request your trial