Reed v. Territory
| Decision Date | 10 December 1908 |
| Citation | 98 P. 583,1 Okla.Crim. 469,1 Okla.Crim. 481,1908 OK CR 39 |
| Parties | REED v. TERRITORY. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
When an indictment uses substantially the same language in charging an offense as is used in the statute in creating the offense the indictment is sufficient.
[Ed Note.-For other cases, see Indictment and Information, Cent Dig. §§ 289-294; Dec. Dig. § 110. [*]]
(a) A general allegation that the grand jury which found the indictment was not properly and legally drawn is too indefinite and uncertain to require notice.
(b) Under the act of Congress of February 9, 1906, 34 Stat. 11 c. 155, a deputy clerk could perform the purely ministerial duties directed to be performed by the clerk of the court, in the matter of recording the list of the jurors upon the journals of the court, and certifying to the correctness thereof.
(c) An application to take evidence to sustain a motion to set aside an indictment, upon the ground that the jury was not properly drawn and impaneled, must be supported by an affidavit in which the allegations of the motion are alleged to be true.
(d) It is not error to overrule a motion to set aside an indictment, when the facts alleged in the motion are not sufficient to show that the motion should be sustained, if proven to be true.
[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. § 472; Dec. Dig. §§ 138, 140, 144; [*] Jury, Cent. Dig. § 284; Dec. Dig. § 66. [*] ]
(a) The fact that an indictment or information is pending against a defendant will not, of itself, prevent a grand jury from finding another indictment against the defendant for the same offense.
(b) The pendency of an indictment or information against a defendant, when there has been no jeopardy upon it, cannot be pleaded, either in abatement or bar to a second indictment or information for the same offense.
(c) The pendency of an indictment or information, when there has been no jeopardy upon it, cannot be set up as ground for continuance, when trial is sought on a new indictment or information presented against the defendant for the same offense.
(d) An application for a continuance should allege that the defendant could not prove, by other witnesses, the same facts which he desires to prove by the absent witness, unless the testimony of the absent witness is intrinsically more valuable than that of the witnesses by whom the same facts could be proven, and then the facts which make this true must also be stated in the application.
(e) An application for a continuance, which consists of a statement of negative conclusions of fact, is not sufficient.
[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 83-86; Dec. Dig. § 15; [*] Criminal Law, Cent. Dig. §§ 1315, 1351, 1356; Dec. Dig. §§ 589, 603. [*]]
It is not error to permit a jury to inspect, look at, and smell the contents of a bottle which has been properly identified and admitted in evidence and is alleged to contain whisky.
[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 651. [*]]
(a) Courts of this state take judicial notice of the boundaries of the state and of the counties in the state, and also of the geographical locations and positions of the towns and cities within their jurisdictions.
(b) See sufficient proof of venue.
See case where there was sufficient proof on part of the state of the fact that the defendant did not have license to retail malt, spirituous, or vinous liquors.
Appeal from District Court, Payne County; before Justice J. H. Burford.
Bryan Reed was convicted of selling intoxicating liquor without a license, and appealed to the Supreme Court of Oklahoma Territory, whence the cause was transferred under the Constitution of Oklahoma and the enabling act to the Supreme Court of that state, and from that court to the Criminal Court of Appeals. Affirmed.
Bryan Reed (hereinafter called defendant) was convicted in the district court of Payne county on the 11th day of October, 1906, of the offense of having sold intoxicating liquor at retail without first having obtained a license therefor. A motion for a new trial was made and overruled, and on the 1st day of November, thereafter, defendant was sentenced by the court to pay a fine of $300 and costs. An appeal was taken to the Supreme Court of Oklahoma Territory. Upon the admission of the state of Oklahoma into the Union, under the terms of the Constitution and the enabling act, the case was transferred to the Supreme Court of the state. When the Criminal Court of Appeals was created, as directed by law, the Supreme Court transferred the case to this court.
Burdick & Reece, for appellant.
W. C. Reeves, Asst. Atty. Gen., and Fred S. Caldwell, for the Territory.
The defendant complains that the trial court erred in overruling his demurrer to the indictment. The specific point relied upon is that the indictment charges that the defendant did sell at retail, for the price of 25 cents, to James Hoggatt, "one half-pint of spirituous liquors, to wit, whisky, without first having complied with the provisions of law and obtained a license as a vendor of malt, vinous, and spirituous liquors."
The statute upon which the indictment is based is in this language: "Any person who shall sell at retail, or give away upon any pretext, malt, spirituous, or vinous liquors, or any intoxicating drinks without first having complied with the provisions of this act, and obtained a license as herein set forth," etc. Wilson's Rev. & Ann. St. 1903, § 3407. While it is true that the exact language of the statute is not followed in the indictment, yet the words used are of similar and equal import with those used in the statute, and the indictment substantially charges the offense named in the statute, and is therefore sufficient. Weston v. Territory (decided at this term) 98 P. 360.
Second. The defendant complains of the action of the trial court in refusing to sustain his motion to dismiss the indictment upon the ground that the grand jury was not regularly drawn. The general charge that the grand jury was not properly and legally drawn is too uncertain and indefinite to require notice. The specific allegations of irregularity state that the deputy clerk performed duties which, under the statute, should have been discharged by the clerk. It is true that section 1 of the act of Congress of February 9, 1906, 34 Stat. 11, c. 155, providing for the selection of grand and petit jurors in Oklahoma Territory, does state that, after the names of the jurors have been selected, the clerk shall record said list upon the journal of the court and certify to the correctness thereof. And the statute further provides that, as soon as said list is completed and recorded, the clerk of the district court shall forthwith write each name upon separate pieces of paper and place them in a box, etc. If these acts required the exercise of judicial powers, then they could not have been performed by the deputy clerk in the absence of a statute giving the deputy this power. But it appears upon their face that these were purely ministerial acts, and it was therefore within the power of the deputy clerk to perform them; and his action is just as regular and binding as if they had been performed by his principal. 7 Cyc. p. 248, is as follows:
The defendant filed an application to take evidence in support of his motion to set aside the indictment. This application was based on section 5399, Wilson's Rev. & Ann. St. 1903, which is, in part, as follows: "To enable the defendant to make proof of the matter set up as grounds for setting aside the indictment, the defendant may file his application before any court of record in the county, setting out and alleging that he is indicted in the district court, naming it, and setting out a copy of his motion to set aside the indictment, and alleging all under oath, that he is acting in good faith, and praying for an order to examine witnesses in support thereof." It will be observed that the statute in express terms states that this application must allege "all under oath." The affidavit in this case fails to comply with this statute, because it does not allege that the facts stated in the application are true. It was therefore not sufficient to authorize the court to make an order to take evidence in support of the motion to set aside the indictment. Two things must concur before a court would be authorized to make the order prayed for: First, The facts alleged in the application must be sufficient, if true, to set aside the indictment-which we have held was not true of the application in this case. Second, The affidavit must state that the allegations made in the application are true. This is not done in the affidavit. For these reasons there was no error in the action of the court in overruling the motion and refusing to take evidence.
Third. Defendant complains that the trial court erred in overruling his application for a continuance. The first ground relied upon was that there was then pending in the...
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