King v. State

• Decision Date: 07 October 1942
• Docket Number: A-10033.
• Citation: 130 P.2d 105,75 Okla.Crim. 210
• Parties: KING v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

130 P.2d 105

75 Okla.Crim. 210

KING v. STATE.

No. A-10033.

Court of Criminal Appeals of Oklahoma

October 7, 1942

Syllabus by the Court.

1. A penal statute, although it may contain general terms, will not be held unconstitutional for uncertainty if it conveys to a person of ordinary intelligence an adequate description of the evil intended to be prohibited.

2. Oklahoma Statutes 1931, Section 1844, Oklahoma Statutes Annotated (Stat. 1941), Title 21, § 1685, examined and found not to be in conflict with Article 2, Section 9, and Article 2, Section 7, of the Constitution of this state, and Article 14, Section 1, of the Amendments to the Constitution of the United States.

3. A large discretion is vested in the Legislature in the fixing of penalties, and a penalty imposed by statute will not be held unconstitutional as excessive or that the punishment is cruel and unusual unless it is so excessive or cruel as to shock the sense of mankind.

Appeal from District Court, Okfuskee County; Arthur Cochran, Judge.

S. J King was convicted of maliciously and cruelly injuring a domestic animal, and he appeals.

Affirmed.

Glenn R. Watson, of Okemah, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and J. Walker Field, Asst. Atty Gen., for defendant in error.

BAREFOOT Presiding Judge.

Defendant S. J. King, was charged in the District Court of Okfuskee County with the crime of maliciously and cruelly injuring a domestic animal; was tried, convicted and sentenced to pay a fine of twenty-five dollars, and has appealed.

This appeal comes to this court upon a transcript. The evidence offered at the trial is not shown by the record. The question presented is that the statute under which defendant was charged is unconstitutional and void and did not create a public offense, and is in contravention of Article 2, Section 9, and Article 2, Section 7, of the constitution of this state, and Article 14, Section 1, of the Amendments to the constitution of the United States. This question was raised by an amended demurrer to the information and in this demurrer it was alleged that the information filed under the above statute is duplicitous and that the terms of the statute are so indefinite and uncertain that a public charge could not be based thereon.

All of these assignments of error are presented together and may be so considered.

The statute here concerned is Oklahoma Statutes 1931, Section 1844, Oklahoma Statutes Annotated (Stat.1941), Title 21, § 1685, and is as follows: "Any person who shall wilfully or maliciously overdrive, overload, torture, destroy or kill, or cruelly beat or injure, maim or mutilate, any animal in subjugation or captivity, whether wild or tame, and whether belonging to himself or to another, or deprive any such animal of necessary food, drink or shelter; or who shall cause, procure or permit any such animal to be so overdriven, overloaded, tortured, destroyed or killed, or cruelly beaten or injured, maimed or mutilated, or deprived of necessary food, drink or shelter; or who shall wilfully set on foot, instigate, engage in, or in any way further any act of cruelty to any animal, or any act tending to produce such cruelty, shall be punished by imprisonment in the penitentiary not exceeding five years, or by imprisonment in the county jail not exceeding one year, or by fine not exceeding five hundred dollars; and any officer finding an animal so maltreated or abused shall cause the same to be taken care of, and the charges therefor shall be a lien upon such animal, to be collected thereon as upon a pledge or a lien".

It is contended by defendant that because the above statute provides for a punishment "by imprisonment in the penitentiary not exceeding five years, or by imprisonment in the county jail not exceeding one year, or by fine not exceeding five hundred dollars" that the statute itself constitutes cruel and unusual punishment. To sustain his contention that the above statute is indefinite and uncertain to the extent that it is unconstitutional and void defendant in his brief cites the following cases: State v. Lawrence, 9 Okl.Cr. 16, 130 P. 508; State v. Barnett, 60 Okl.Cr. 355, 69 P.2d 77; Groskins v. State, 52 Okl.Cr. 197, 4 P.2d 117, and Katzman v. Commonwealth, 140 Ky. 124, 130 S.W. 990, 30 L.R.A.,N.S., 519, 140 Am.St.Rep. 359.

We have carefully examined these cases and they do not sustain the contentions of defendant. In each case they uphold the validity of the statute in question. In some of the cases the statutes under consideration are much more general and broad in their terms than the statute here involved. In the Barnett case, supra, the court sustained a statute, Oklahoma Statutes 1931, Sections 9146 and 9163, Oklahoma Statutes Annotated (Stat.1941), Title 6, §§ 18 and 22, which, to our mind, is much more indefinite and uncertain than the one here involved. The Court, in approving the case of Groskins v. State, 52 Okl.Cr. 197, 4 P.2d 117, said [60 Okl.Cr. 355, 69 P.2d 89]:

"A penal statute is sufficiently certain, although it may use general terms, if the offense is so defined as to convey to a person of ordinary intelligence an adequate description of the evil intended to be prohibited. ***

This court is of opinion that the statute, including the sections in question, is constitutional and that all objections which have been urged thereto are without merit. Hence, the motions to quash and set aside the indictments in the two cases before the court below should be overruled."

The Lawrence case, supra, fully supports the contention of the State and not that of the defendant. It is true that the offense there involved was a common law crime and the one here involved is statutory but there is no difference in the rule by reason of this fact. The opinion states [9 Okl.Cr. 16, 130 P. 510]: "We are of the opinion that [Comp.Laws 1909], section 2782, 21 O.S.1941 § 22, is not void for uncertainty and that it is valid and enforceable, and that any act which is willful and wrongful and which results in grossly disturbing the public peace, or openly outrages public decency, or injures public morals, is within its terms, and constitutes an offense against the laws of the state of Oklahoma".

In the Katzman case, supra, the statute was upheld and the rule announced as follows [140 Ky. 124, 130 S.W. 991, 30 L.R.A.,N.S., 519, 140 Am.St.Rep. 359]:

"'No

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