Hammett v. State

• Decision Date: 12 May 1914
• Docket Number: 3188.
• Citation: 141 P. 419,42 Okla. 384,1914 OK 228
• Parties: HAMMETT ET AL. v. STATE.
• Court: Oklahoma Supreme Court

141 P. 419

42 Okla. 384, 1914 OK 228

HAMMETT ET AL. v. STATE.

No. 3188.

Supreme Court of Oklahoma

May 12, 1914

Rehearing Denied June 23, 1914.

Syllabus by the Court.

Evidence examined, and held sufficient to establish the crime alleged by a preponderance of the evidence.

A request for an instruction that the crime alleged in the petition must be proved beyond a reasonable doubt is properly refused. All that is required of the state in civil actions for the recovery of a penalty under section 4191 Snyder's Comp. Laws 1909, is to prove the crime by a preponderance of the evidence.

In a civil action for the recovery of a penalty, evidence of general reputation of the defendants as law-abiding citizens was inadmissible, and the court properly excluded such evidence.

Conversations had by the defendants with third parties were not admissible as they were self-serving declarations.

This court will not reverse a case on the ground that leading questions were asked, unless it is shown that there was a flagrant abuse of judicial discretion.

Commissioners' Opinion, Division No. 1. Error from District Court, Jackson County; Frank Matthews, Judge.

Action by the state of Oklahoma against K. S. Hammett and another. Judgment for the plaintiff, and defendants bring error. Affirmed.

S. B Garrett, S. J. Castleman, and I. C. Sprague, all of Altus for plaintiffs in error.

M. L Hankins and J. M. Williams, both of Altus, for defendant in error.

RITTENHOUSE, C. (after stating the facts as above).

A demurrer was filed to the evidence offered by the plaintiff on the ground that there was not sufficient evidence to support the allegations of the petition, and that the evidence was indefinite and uncertain. We have examined the evidence and, while the evidence offered was not sufficient to prove the plaintiff's case beyond a reasonable doubt, yet the plaintiff has proven its case by a preponderance of the evidence which, under the law, is sufficient. The weight and credit to be given the evidence was a question for the jury.

Exceptions were saved to the refusal of certain instructions requested by the plaintiffs in error, but this court is satisfied that the instructions given by the court below fully covered all the legal questions involved in the case; and it is therefore unnecessary to set out the several instructions complained of. The main question raised by the instructions refused is whether the plaintiff was required to prove its case "beyond a reasonable doubt," as in a criminal action, or by a "preponderance of the evidence," as in civil actions. We have given this phase of the question considerable thought, and have come to the conclusion that, where a penalty is sought to be recovered in a civil action, the great weight of modern authorities is in favor of the rule that it is sufficient to establish the existence of the crime by a preponderance of the evidence, and the state is not required to prove the crime in such civil action beyond a reasonable doubt.

In the case of Stout v. State, 36 Okl. 744, 130 P. 553, in a very able opinion written by Judge Ames, the court held that an action to recover a penalty under section 4191, supra, was a civil action, and "governed by the rules of procedure in civil instead of criminal cases, and would not require evidence beyond a reasonable doubt to support it, or a unanimous verdict, or the other peculiar classes of protection which are thrown around those whose life or liberty was at stake." 30 Cyc. 1358, note; Continental Insurance Co. v. Jachnichen, 110 Ind. 59, 10 N.E. 636, 59 Am. Rep. 194; People v. Briggs et al., 47 Hun (N. Y.) 266, affirmed 114 N.Y. 56, 20 N.E. 820; Lowery v. Rowland et al., 104 Ala. 420, 16 So. 88; Rogers v. Brooks, 105 Ala. 549, 17 So. 97; Louisville & Nashville R. R. Co. v. Hill et al., 115 Ala. 334, 22 So. 163; Ruth v. City of Abingdon, 80 Ill. 418; Town of Lewiston v. Proctor et al., 27 Ill. 414; Roberge v. Burnham, 124 Mass. 277; Robinson v. Schlitz, 135 Mo.App. 32, 115 S.W. 472; Cox v. Thompson, 37 Tex.Civ.App. 607, 85 S.W. 34; 9 Enc. Ev. 751; 23 Cyc. 170; 17 Cyc. 761.

In the case of People v. Briggs, supra, the court said:

" 'There is no rule of law which requires the plaintiff in a civil action, when a judgment against the defendant may establish his guilt of a crime, to prove his case with the same certainty which is required in criminal prosecutions. Nothing more is required in such cases than a just preponderance of evidence, always giving the defendant the benefit of the presumption of innocence.' Ferry Co. v. Moore, 102 N.Y. 667, 6 N.E. 293, fully reported in 18 Abb. N.C. 106. The rule so stated is the proper one applicable to the measure of evidence in civil actions, and such seems to be the weight of authority. See cases collected in note to Sprague v. Dodge, 95 Am. Dec. 525."

The remaining question to be determined arises upon the exclusion of testimony offered by the plaintiffs in error. The assignments of error present three classes of testimony excluded: First, the evidence of the good character of the plaintiffs in error; second, the offer to show that they had served Frank Kennedy with a notice to vacate the premises in controversy on the ground that he was violating section 4191, supra; third, the offer to show that they had requested witness Aday to watch the premises and ascertain if liquor was being sold, and their direction to witness H. A. Steele to watch said premises and their offer to furnish a room for that purpose.

First. The defendants offered in evidence their general reputation as law-abiding citizens as a part of their defense. This the court excluded. The defendants' good character is not a proper subject of inquiry in an action for penalty for a violation of section 4191, supra. In the admission of evidence in an action of this character the court is governed by the rules of evidence in civil instead of criminal actions. To this rule there are one or two exceptions, but those exceptions are not involved in this action. The rule in England is:

"That in a direct prosecution for a crime, such evidence is admissible, but when the prosecution is not directly for the crime, but for the penalty, it is not"

and this rule has been followed in nearly every state in the Union.

1 Greenleaf on Ev. § 54 (15th Ed.) lays down the rule that evidence of the general character of the defendant in a civil action for the recovery of a penalty for violation of the civil, police or revenue laws, is inadmissible. The same rule has been held in the following cases: Fowler v. Ætna Fire Ins. Co., 6 Cow. (N. Y.) 673, 16 Am. Dec. 460; Gebhart v Burkett, 57...