Fletcher v. State

• Decision Date: 24 April 1909
• Parties: FLETCHER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

101 P. 599

2 Okla.Crim. 300, 1909 OK CR 59

FLETCHER v. STATE.

Court of Criminal Appeals of Oklahoma

April 24, 1909

Syllabus by the Court.

Weston v. Territory, 98 P. 360, reaffirmed, and the principles there announced declared to be the settled policy of this court.

[Ed Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 238; Dec. Dig. § 219. ^[*]]

In an indictment or information for committing a statutory offense the indictment or information may describe the offense in the general language of the statute; but the description must be accompanied by a statement of the particulars essential to constitute the crime or offense with which the defendant is charged, and acquaint the accused with what he must meet upon the trial.

[Ed Note.-For other cases, see Indictment and Information, Cent. Dig. § 292; Dec. Dig. § 110. ^[*]]

An indictment or information for a single sale of intoxicating liquors must allege the name of the person or persons to whom such sale was made. If the names of such persons are unknown, then this fact must be stated. This, however, would not be necessary where the prosecution was for maintaining a nuisance, or for having possession of liquor to be illegally disposed of.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 237-239; Dec. Dig. § 219. ^[*]]

It is error for a trial judge to single out the defendant, personally, and instruct the jury upon the credibility of his evidence.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1971; Dec. Dig. § 811. ^[*]]

Care should be taken, in instructing juries upon the credibility of witnesses, to make such instructions apply alike to all of the witnesses, whether they are for the prosecution or for the defense.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1889-1894; Dec. Dig. § 785. ^[*]]

Appeal from Muskogee County Court; W. C. Jackson, Judge.

Charley Fletcher was convicted of an illegal sale of liquors, and appeals. Reversed and remanded.

On the 19th of June, 1908, an information was filed against Charley Fletcher (hereinafter called the defendant) charging him with unlawfully selling intoxicating liquor. The defendant demurred to the information upon the ground that it did not state facts sufficient to constitute a public offense. This demurrer was by the court overruled, and the defendant reserved an exception. Upon the trial of the cause the defendant was found guilty, and his punishment was assessed by the jury at a fine of $50 and 30 days' confinement in jail. Motions for a new trial and in arrest of judgment were filed and overruled, and the defendant excepted. The case is regularly before us upon appeal.

S. M. Rutherford and Bailey & Kistler, for appellant.

Fred S. Caldwell, for the State.

FURMAN P.J.

The first question that presents itself is the sufficiency of the information, in that it fails to give the name of the person to whom the liquor was sold. In the case of Weston v. Territory, 98 P. 360, this court held that in such cases the information must give the name of the person to whom the sale was made, so that the defendant may know the particular offense charged, and thereby be enabled to prepare his defense. As no one appeared for the state in that case, the counsel for the state in this case has filed a brief in which he claims that the great weight of the authorities are against the conclusion which this court reached in the Weston Case, and we are asked to recede from the opinion there rendered. This court is not only perfectly willing, but is anxious, to correct any errors which it may commit, so we have carefully gone over all of the authorities cited by counsel for the state, as well as others of our own selection. We have classified these authorities as follows:

In the cases of People v. Adams, 17 Wend. (N. Y.) 475, and of State v. Ladd, 15 Mo. 299, and of State v. Gummer, 22 Wis. 441, the defendants were charged with selling liquors to divers unknown persons. It is a fundamental rule of criminal law that in all cases where the name of a person should be given in an indictment, and the name is unknown, it may be stated in the indictment that such name is unknown, and this will dispense with the necessity of giving the name of such persons in the indictment; otherwise it would be impossible to indict and convict for many crimes.

All exceptions to the general rules of law which are sanctioned and approved by the wisdom and experience of centuries must be strictly followed, or the rules will cease to exist, and we will be involved in confusion and in inextricable conflicts as to matters of principle. Under the rule that where a necessary name is unknown that fact may be stated, the indictments in the above-cited cases were sufficient, and the decisions should not be considered as authorities that it is not necessary to include in an indictment or information the names of the parties to whom the liquor was sold. The decisions of courts are not binding as to questions not involved in the cases passed upon. Anything said by a judge in an opinion not responsive to the real questions before the court is purely obiter dictum and does not constitute an authority. The case of Walker v. State, 89 Ga. 482, 15 S.E. 553, is cited as an authority to support the contention of the attorney for the state. An examination will show the name of the case, the syllabus of an opinion, a statement of the facts of the case, and the names of the counsel who represented the contending parties; but there is no judgment of the Supreme Court, no authorities are cited, and no reasons are given. There is nothing except the bald, unsupported statement contained in the syllabus. We are left utterly in the dark as to the grounds upon which this syllabus rests. This may be an authority in Georgia, but we cannot recognize it as such in Oklahoma. Before we can recognize the decision of any court as authority, we must know and approve the reasons upon which it rests.

The cases of State v. Whisner, 35 Kan. 271, 10 P. 852, and of State v. Moseli, 49 Kan. 142, 30 P. 189, are also cited by counsel for the state as authorities in point. In the first-cited case, on page 275 of 35 Kan., page 855 of 10 Pac., the court said: "In prosecutions of this character, it is not necessary to state the kind of liquor sold, or the name of the person to whom sold, for the statute expressly and specifically provides that these things need not be stated."

So we see that the omission to state in the indictment the person to whom the liquors were sold was the result of a special statute in Kansas. We have no such statute in Oklahoma. Hence those cases are not applicable. Counsel cite five decisions from the Supreme Court of Arkansas. An examination of the first Arkansas case cited (State v. Parnell, 16 Ark. 506, 63 Am. Dec. 72) will disclose the fact that in a great number of cases the Supreme Court had held that in indictments for gambling it was necessary to state the names of the persons by whom the game was played, as matters of description of the offense, and that the proof must correspond with this allegation. The Legislature of Arkansas passed a law which dispensed with the necessity of making the allegation in the indictment of the names of the persons who engaged in card playing. Upon analogy the Supreme Court of Arkansas held that this statute was applicable to indictments for selling whisky. We have no such statute in Oklahoma. Therefore the decisions of the Arkansas courts are not authorities on this point.

Counsel cites the case of State v. Chisnell, 36 W.Va. 659 15 S.E. 412, as sustaining his contention. On page 662 of 36 W. Va., page 412 of 15 S. E., that court said: "The indictment not naming the purchaser gives the defendant no notice of what particular sale is charged against him. He knows this, perhaps, first when the state has proven its case, and then must set about his defense. *** This would be very oppressive and hurtful to the defendant. Not until the close of the state's evidence of the sales, in many instances numerous, does he know what sales are imputed to him, and he must at once seek evidence from this quarter and that to repel the case made by the prosecution, and often, for want of time, it is utterly out of his power to furnish such evidence. It is hard enough to allow an indictment wanting that element of certainty most valuable to the defendant as notice of what sale he is called upon to meet, without springing upon him numerous sales, and working serious surprise to the defendant. There is also this grave objection to permitting evidence of several sales to be considered by the jury: Part of the jury may think the evidence of one sale sufficient for conviction, while other jurors think it not sufficient, but thinking another sale fully proven the entire jury unite in the opinion that the defendant is at any rate guilty of a violation of law when in fact the entire jury is not agreed that the defendant is guilty of one particular unlawful sale; and so really the defendant has not been lawfully convicted by the concurring judgment of 12 jurors of one and the same single offense. He has been indicted for one offense, tried for many, and convicted of one, but of which one of the many we cannot say. True, we can hardly presume that the jury would be so careless as to return a verdict without the agreement of all upon the same sale; but it is a danger which would exist under such a practice. *** Wharton, in 2 Crim. Law,§ 1525, speaking of illicit sales of liquors, says: 'It is erroneous to admit evidence of a greater number of offenses than there are counts, unless to prove scienter or quo animo. ***' Were it an open question in this state, I should think that the principles of...