Smythe v. State
| Decision Date | 24 April 1909 |
| Citation | 101 P. 611,2 Okla.Crim. 286,1909 OK CR 58 |
| Parties | SMYTHE v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
It is only when the exception in a penal statute is so incorporated in or with the enacting clause of such statute as to constitute a material part of the definition or description of the offense that it need be negatived in the information otherwise it will be a matter of defense.
[Ed Note.-For other cases, see Indictment and Information, Cent Dig. §§ 295-298; Dec. Dig. § 111. [*]]
A negative averment to the matter of an exception or proviso in a penal statute is not requisite in an information, unless the matter of such exception or proviso enters into, and becomes a material part of, the description of the offense.
[Ed Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 295-298; Dec. Dig. § 111; [*] Intoxicating Liquors, Cent. Dig. 240-248; Dec. Dig. § 221. [*]]
Senate Bill No. 61 (chapter 69, p. 594, Sess. Laws 1907-08), known as the "Billups Prohibition Enforcement Act," is not violative of section 57, art. 5, of Bunn's Constitution of Oklahoma.
[Ed. Note.-For other cases, see Intoxicating Liquors, Dec. Dig. § 17. [*]]
An information which informs the accused of the offense with which he is charged with such particularity as will enable him to prepare for his trial, and so defines and identifies the offense that the accused, if convicted or acquitted, will be able to defend himself in case he be indicted again for the same offense by pleading the record of such former conviction or acquittal, is sufficient as against demurrer.
Error from Creek County Court; Josiah G. Davis, County Judge.
C. P. Smythe was convicted of illegally selling intoxicating liquor, and he brings error. Affirmed.
The plaintiff in error, who will, for convenience's sake, be hereinafter referred to as the accused, was, on the 27th day of June, 1908, found guilty of unlawfully selling one pint of whisky to Stanley Seymour. The prosecution was predicated upon an information, which reads as follows: "In the name and by the authority of the state of Oklahoma, now comes L. B. Jackson, the duly qualified and acting county attorney, in and for Creek county, state of Oklahoma, and gives the county court of Creek county, state of Oklahoma, to know and be informed that C. P. Smythe did, in Creek county, and in the state of Oklahoma, on or about the 8th day of April, in the year of our Lord one thousand nine hundred and eight, and anterior to the presentment hereof, commit the crime of selling intoxicating liquor, in the manner and form as follows, to wit: Did sell to Stanley Seymour one pint of whisky, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state." To this information the accused filed a general demurrer, which was by the court overruled, to which ruling the accused saved an exception. Thereupon the jury was impaneled and sworn, and the evidence presented on behalf of the state. The accused offered no evidence. The accused was found guilty as charged in the information, and in due time filed his motion for a new trial, alleging: (1) That the court erred in its decision in overruling the demurrer to the information; (2) because the verdict is contrary to law, for the reason that the information does not charge a public offense; (3) because the verdict is not sustained by the evidence, and is contrary thereto. The motion for a new trial was overruled, to which the accused duly excepted, and the court entered judgment on the verdict, sentencing the accused to pay a fine of $50, and be imprisoned in the county jail 30 days, and thereupon the accused filed a motion in arrest of judgment, setting up, in substance, that the facts alleged in the information are not sufficient to constitute a public offense, and that said information had been demurred to by the accused, and the demurrer overruled before the trial was commenced. Said motion in arrest of judgment was overruled, to which ruling the accused duly saved his exception, and thereafter, on the 27th day of June, 1908, the court below rendered judgment upon the verdict, and sentenced the accused to pay a fine of $50, with costs, and that he be committed in the county jail of Creek county for a period of 30 days, and that, in the event of failure to pay said fine, he be incarcerated a further period than the 30 days' sentence sufficient to liquidate said fine and costs. To said judgment and sentence accused duly excepted, and brings this case to this court on appeal for the purpose of reversing said judgment. Briefs are filed on both sides.
Sornborger & Williams, for plaintiff in error.
Fred S. Caldwell, for the State.
The only question presented in this case is the sufficiency of the information, a copy of which is contained in the statement of the case. The able counsel for the accused contend that said information is insufficient for two reasons: (1) Because the pleader neglected to negative the exceptions or provisos of the statute defining the offense in Senate Bill No. 61 (Sess. Laws 1907-08, p. 603, c. 69, art. 3), known as the "Billups Law," which reads as follows: ***" (2) Because the said Billups law is violative of section 57, art. 5, of the Constitution of this state, which reads as follows: "The powers of the initiative and referendum reserved to the people by this Constitution for the state at large, are hereby further reserved to the legal voters of every county and district therein, as to all local legislation, or action, in the administration of county and district government in and for their respective counties and districts." Counsel for the accused correctly maintain that the Billups act authorizes certain persons, or class of persons, to sell intoxicating liquors under the restrictions contained in the act, that under said act persons may be appointed agents for the state for the purpose of selling intoxicating liquors, and that such persons, when so appointed, are authorized to sell as much as one pint of whisky, if sold under the provisions of said act. It is also contended by the accused that under the terms of said act such persons are exempted from the penalty of the act, and that a sale of a pint of whisky is not necessarily a violation of the act, and that under the restricting or prohibiting terms of the act, which provides "it shall be lawful for any person to *** sell *** except as in this act provided," and by reason thereof certain persons are excluded and excepted from the operation of said section, it is necessary for an information to contain averments negativing the class or kind of persons who are exempted from prosecution for selling liquor, if sold under the provisions of said act.
The statute of this state respecting things necessary to be averred in the indictment are as follows: Section 222, Cr Code (section 5358, Wilson's Rev. & Ann. St. 1903), provides: The statute just quoted is in consonance with the common law. It seems a well-established rule of criminal pleading that the exceptions contained in a statutory definition of an offense must be negatived in an indictment or information. In other words, it must appear from the indictment or information that the person charged with a statutory crime, or a crime which is not malum in se, but merely malum prohibitum, which contains a clause exempting certain designated classes, is not included in such excepted class. This rule is founded upon the general principle that the information must contain a statement of those facts which constitute an offense, under the statute defining such offense. Justice Clifford, in delivering the opinion of the court in the case of United States v. Isaac N. Cook, found in 84 U.S. 168, 21 L.Ed. 538, lays down the following rule: Another general rule that seems well settled by the authorities is this: That where a statute defining an offense contains an exception in the enacting clause which is so incorporated with the language defining the offense that the ingredients of the offense cannot be accurately and clearly described if the exception is omitted, the rules of good pleading require that an indictment or information founded upon the statute must allege enough to show that the accused is not within the exception; but, on the...
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