De Graff v. State
| Decision Date | 29 July 1909 |
| Citation | 103 P. 538,2 Okla.Crim. 519,1909 OK CR 82 |
| Parties | DE GRAFF v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
(a) Section 5239, Wilson's Rev. & Ann. St. 1903, in mandatory terms, makes the information the basis upon which a warrant of arrest shall issue, and requires the information to be verified by oath or affirmation.
(b) Section 5306, Wilson's Rev. & Ann. St. 1903, provides that an information may be verified by the county attorney the complainant, or some other person.
(c) The latter part of section 5306, Wilson's Rev. & Ann. St 1903, which provides that a county attorney may verify an information upon information and belief, having been declared to be in violation of the Constitution of the United States by the Supreme Court of Oklahoma Territory, was not in force in the territory at the incoming of statehood, and was therefore not put in force in this state by the Schedule of the Constitution.
(d) No warrant of arrest can be lawfully issued except upon an information duly verified as provided for in sections 5239 and 5306, Wilson's Rev. & Ann. St. 1903.
(e) The question of the verification of an information was not passed upon in the case of Evans v. Willis (Okl.) 97 P 1047, 19 L. R. A. (N. S.) 1050.
(f) A warrant of arrest cannot be issued upon suspicion, hearsay or belief, but only on some fact certain supported by oath or affirmation, which is sufficient to cause the officer whose duty it is to issue the warrant or to direct its issuance to believe that an offense has been committed, and that the party for whose arrest it is issued is probably guilty of having committed the offense. This is a fundamental principle of American jurisprudence and is required by the Constitution and statutes of our state.
(g) Cases in which arrests may be made without warrant are enumerated in our statute.
(h) In cases where no witness knows all of the facts necessary to show that an offense has been committed and that the accused is probably guilty thereof, the affidavits of any number of witnesses may be taken to such facts as are within their knowledge, and if they show that an offense has been committed, and satisfy the officer charged with the duty of issuing the warrant of arrest or directing its issuance that the accused is probably the guilty party, and these affidavits are copied into the information and made a part thereof, then the county attorney or any other person would be fully justified in verifying the information as required by statute, and upon such an information, so verified, a warrant of arrest can be legally issued. The doctrine announced in Ex parte Flowers (Okl. Cr. App.) 101 P. 860, and in Salter v. State (Okl. Cr. App., not yet officially reported) 102 P. 719, approved.
(a) An information or indictment must charge but one offense; but when the same act may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty, the different offenses may be set forth in separate counts in the same indictment or information; but in such cases the information or indictment must show upon its face that the separate counts are all based upon one and the same transaction. Sturgis v. State (Okl. Cr. App.) 102 P. 37, cited and approved.
(b) The offenses of maintaining a place where liquors are kept for the purpose of sale, and of transporting liquor from one place in the state to another place therein, and of knowingly having the possession of liquor for the purpose of sale and of selling such liquor, are all separate and distinct offenses, and are based upon separate acts, and cannot be joined in the same information or indictment.
(c) When an information or indictment attempts to charge separate offenses against the accused, not based upon one and the same transaction, the state should be compelled to elect the count upon which it will go to trial, and the other counts should be dismissed. If this is not done, the information or indictment should be set aside.
(a) An information or indictment for transferring liquor from one place in the state to another place therein must show upon its face a removal from one locality in the state or city or county to another locality in the state or in the city or county. If these different localities are known, they should be stated; if not known, this should be stated, and it should be made to appear that the removal came with in the meaning of the law.
(b) The removal of liquor from one room in a house to another room in the same house is not an offense within the meaning of the law. Each house constitutes but one place.
(c) In an information or indictment for the removal of liquor from one place in the state to another place therein, it is not necessary to state that such liquors were not acquired by lawful purchase. This is a matter to be pleaded and proven by the defendant
(d) A negative averment to the matter of an exception or proviso in a penal statute is not necessary in an information or indictment unless the proviso or exception enters into and becomes a material part in the description of the offense. Smythe v. State (Okl. Cr. App.) 101 P. 611, cited and approved.
(e) When an exception is stated in a statute, and the facts necessary to bring the act charged within such exception are peculiarly within the knowledge of the defendant, the state is not required to prove the nonexistence of such facts, but the burden is upon the accused to prove the existence of such facts as a matter of defense.
(f) When a person sells a number of different kinds of prohibited liquors to one person or to a number of different persons, and such sale constitutes but one transaction, but one offense has been committed, and the information may charge in the same count the sale of each kind of liquor so sold, and proof of the sale of any or all of the kinds of liquor described therein will support the allegation of the information. Such a count is free from the objection of duplicity.
(a) No officer can, by his consent to or connivance in the commission of a public offense, destroy the criminal character of the act done or free the perpetrator from prosecution or punishment for the crime so committed.
(b) The state is not estopped from prosecuting a criminal by the action of a county attorney or other officer.
(c) It is not improper for officers, charged with the duty of enforcing the laws, to employ detectives to ferret out and procure evidence for the prosecution of parties who violate the law.
(d) It is proper to allow a searching cross-examination of detectives for the purpose of showing their interest in the case before the court, and thereby affecting their credibility
(e) In prosecutions for selling liquors when the sale was made prior to the passage of the enforcement act, and the prosecution is based upon the provisions contained in our Constitution, if the liquor sold comes within one of the classes mentioned in the Constitution it need not be alleged or proven that such liquor was intoxicating; but if the liquor sold is not one of the enumerated classes, but is a substitute therefor, then this fact must be charged in the information or indictment, and the state must prove that such substitute was intoxicating.
(f) For offenses committed against the enforcement act, it is not necessary for the state to allege or prove that substitutes for the kind of liquor therein enumerated were intoxicating. In describing such liquors it is sufficient to follow the language of section 1, art. 3, of the enforcement act (Laws 1907-08, p. 603, c. 69), or to use language of similar import. Markinson v. State (Okl. Cr. App.) 101 P. 354, approved.
(g) In prosecutions for violating the provisions of sections 1, 3, 12, and 14, of the enforcement act, where the intent with which the prohibited act was done is material, it is competent for the state to prove that whisky and beer glasses and corks of whisky or beer bottles, and bottles which looked like beer or whisky bottles, were seen in the place, the character of which is under investigation, and that in the back yard of such place and on the same lot there was found prohibited liquors, or empty bottles thereof, and that men were seen to enter such place and remain a few minutes, and that upon coming therefrom intoxicating liquors were smelt on their breath, and that persons were seen to come out of such place staggering and in an intoxicated condition. This evidence is competent to prove the quo animo.
Appeal from Pottawatomie County Court; E. D. Reasor, Judge.
I. J. De Graff was convicted for violation of the liquor law, and he appeals. Reversed and remanded.
It is proper to allow a searching cross-examination of detectives to show their interest and thereby affect their credibility.
On the 7th day of October, 1908, an information was filed in the county court of Pottawatomie county, Okl., against I. J. De Graff, hereinafter called "defendant," which information is as follows:
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...U.S. 897, 920–21, 104 S.Ct. 3405, 3419, 82 L.Ed.2d 677 (1984). Since this Court has previously held in DeGraff v. State, 1909 OK CR 82, 2 Okla.Crim. 519, 103 P. 538, 541;State v. Thomason, 1975 OK CR 148, ¶ 14, 538 P.2d 1080, 1086; and Long v. State, 1985 OK CR 119, ¶ 6, 706 P.2d 915, 916–1......
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...Court's interpretation of the Fourth Amendment because the former is “almost an exact copy” of the latter (quoting DeGraff v. State, 2 Okla.Crim. 519, 103 P. 538, 541 (1909))). Accordingly, we hold Dr. Lewis's Oklahoma constitutional claim fails for the same reasons as his Fourth Amendment ......
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