Stout v. Territory

• Decision Date: 24 July 1909
• Citation: 103 P. 375,2 Okla.Crim. 500,1909 OK CR 77
• Parties: STOUT v. TERRITORY.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

103 P. 375

2 Okla.Crim. 500, 1909 OK CR 77

STOUT v. TERRITORY.

Court of Criminal Appeals of Oklahoma

July 24, 1909

Syllabus by the Court.

Where the statute provides that any one of a certain class of persons, who shall do a certain act under certain circumstances, shall be guilty of a crime, the indictment or information must describe the person accused as one of that class, and aver that he did the act under the circumstances which made it a crime, as this fact is an essential element of the crime.

Where the statute (Wilson's Rev. & Ann. St. 1903, § 5358) creates and defines an offense, an indictment or information which does not allege all the essential elements constituting such offense is insufficient.

Where an indictment charging a violation of section 2616 Wilson's Rev. & Ann. St. 1903, which provides "Every innkeeper, or person licensed to sell liquors who sells or gives away any strong or spirituous liquor, or wine, upon Sunday, is guilty of a misdemeanor"--fails to allege that the defendant was an innkeeper or a person licensed to sell liquors, held that said indictment fails to state facts sufficient to constitute an offense under said section.

Appeal from District Court, Oklahoma County; B. F. Burwell, Judge.

D. C Stout was convicted of a violation of Wilson's Rev. & Ann. St. 1903, § 2616, making an innkeeper, or person licensed to sell intoxicating liquor, who shall sell on Sunday, guilty of a misdemeanor, and he appealed to the Supreme Court of Oklahoma Territory, whence the cause was transferred to the Supreme Court of the state of Oklahoma, and from thence to the Criminal Court of Appeals. Reversed and remanded, with directions.

Ledru Guthrie, for appellant.

Charles West, Atty. Gen., and E. G. Spilman, Asst. Atty. Gen., for the Territory.

DOYLE, J. (after stating the facts as above).

This was a criminal prosecution under the liquor license law of Oklahoma Territory.

The first proposition contended for is that "the court erred in overruling defendant's demurrer to the indictment." Counsel for appellant predicate this proposition upon the assumption that the offense charged was a violation of section 3410, Wilson's Rev. & Ann. St. 1903, which reads as follows: "Every person who shall sell or give away any malt, spirituous, and vinous liquors on the day of any special or general election or at any time during the first day of the week, commonly called Sunday, or who shall keep an open saloon after midnight, or open same before five o'clock in the morning shall forfeit and pay for every such offense the sum of one hundred dollars"--and contends that the aforesaid section provides for a forfeiture only, but does not make the offense charged a misdemeanor. Counsel for the state in their brief argue that: "It is not denied that the section of the statute quoted contemplates a forfeiture of money in case the things inhibited by the law are done, and that this means that the person who sells liquors as prohibited subject themselves to suit on their bond and the payment of money. But it is also true that the indictment in this case charges the unlawful and wrongful selling of 'malt, spirituous, and vinous liquors.' This language is broad enough to cover the offense, and bring it within the meaning of section...