Titsworth v. State

• Decision Date: 17 April 1909
• Citation: 101 P. 288,2 Okla.Crim. 268,1909 OK CR 56
• Parties: TITSWORTH v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

101 P. 288

2 Okla.Crim. 268, 1909 OK CR 56

TITSWORTH v. STATE.

Court of Criminal Appeals of Oklahoma

April 17, 1909

Syllabus by the Court.

This court appreciates the frankness of Hon. Fred S. Caldwell enforcement attorney, and indorses as correct the following statement contained in his brief, and adopts it as a part of the syllabus of this case: "It is not per se unlawful under that statute for a person engaged in any other business than the drug business to keep or use, in or about his place of business, intoxicating liquors. That is to say, in the case of a groceryman, hardware merchant, dry goods merchant or any other than the drug business, the keeping of intoxicating liquor in or about the place of business would not constitute a crime, unless accompanied with the intent of the possessor to use or dispose of the same in violation of some one or more of the provisions of the enforcing act."

[Ed Note.-For other cases, see Intoxicating Liquors, Dec. Dig. § 139. ^[*]]

Section 8, art. 2, of the enforcement act (Laws 1907-08, p. 600, c. 69), is applicable alone to those apothecaries or pharmacists who have complied, or attempted compliance, with the provision therein contained. Other pharmacists or apothecaries who have not complied, or attempted compliance, with the conditions of said section are not subject to the penalties therein prescribed.

[Ed. Note.-For other cases, see Intoxicating Liquors, Dec. Dig. § 139. ^[*]]

An information or indictment which attempts to charge a violation of section 8, art. 2, of the enforcement act (Laws 1907-08, p. 600, c. 69), must allege the offense in the language, or use substantially the language, of the section, and must allege a compliance with the conditions of said section 8. If it fails to do this, it will not charge a public offense.

[Ed. Note.-For other cases, see Indictment and Information, Dec. Dig. § 110. ^[*] ]

Appeal from Muskogee County Court.

Eugene Titsworth was convicted of a violation of the liquor law, and appeals. Reversed.

On the 27th of June, 1908, the county attorney of Muskogee county filed in the county court of said county the following information against the appellant, Eugene Titsworth, who will hereinafter be called the defendant: "In the County Court of Muskogee County, Okl. State of Oklahoma v. Eugene Titsworth, Defendant. In the Name and by the Authority of the State of Oklahoma: Now comes W. J. Crump, the duly qualified and acting county attorney in and for Muskogee county, state of Oklahoma, and gives the county court of Muskogee county, state of Oklahoma, to know and be informed that Eugene Titsworth, did, in Muskogee county, and in the state of Oklahoma, on or about the 26th day of June in the year of our Lord one thousand nine hundred and eight, and anterior to the presentment hereof, commit the crime of having and keeping, in and about his place of business and apothecary, intoxicating liquors, said liquors not being a lawful purchase, in the manner and form as follows, to wit: That the said Eugene Titsworth, a retail apothecary, in the county of Muskogee, state of Oklahoma, on the 26th day of June, 1908, did knowingly, willfully, and unlawfully have and keep in and about his place of business and apothecary intoxicating liquors, said liquors not being a lawful purchase from the state agency and local agency, Muskogee county, state of Oklahoma, or superintendent, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state." On the 21st of September the defendant filed the following demurrer to the information: In the County Court of Muskogee County, State of Oklahoma. State of Oklahoma v. Eugene Titsworth, Defendant. No. 124. Comes the defendant, Eugene Titsworth, and demurs to the information herein, for the following reason, to wit: Because said information does not state facts sufficient to constitute a public offense against this defendant. Wherefore defendant prays that he may be discharged hence with his costs. S. M. Rutherford, Attorney for Defendant." This demurrer was by the court overruled, to which action of the court the defendant reserved an exception. Upon the trial of the case the jury found the defendant guilty as charged in the information, and assessed his punishment at imprisonment for 30 days, and a fine of $250. The defendant filed a motion in arrest of judgment, upon the ground that the information did not state facts sufficient to constitute a crime under the law. This motion was overruled by the court, and the defendant reserved an exception. The case is regularly before this court upon appeal.

Enforcement Act, Laws 1907-08, p. 600, c. 69, art. 2, § 8, requiring every apothecary using in his business liquors the sale of which is prohibited, to execute a bond, and limiting the amount that he may keep on hand, such liquors to be used only for medical purposes, and providing a penalty on violation of the act, does not apply to pharmacists or apothecaries who have not complied, or attempted to comply, with the provisions of such section as to giving bonds.

S. M. Rutherford, for appellant.

Fred S. Caldwell, for the State.

FURMAN P.J.

The controlling question in this case is as to whether it is per se unlawful for an apothecary or pharmacist to have and keep, in and about his place of business, as such apothecary or pharmacist, intoxicating liquors, without the intention to dispose of them in violation of the provisions of the enforcement act, which liquors were not acquired by lawful purchase from the state agency or the local agency, without having first executed a bond, approved by the superintendent of the state agency, conditioned as provided in section 8, art. 2, of the enforcement act (Laws 1907-08, p. 600, c. 69), which section is as follows: "Sec. 8. Each apothecary or pharmacist doing business in this state, before acquiring, keeping, or using in or about his said pharmacy or apothecary any liquors the sale of which is prohibited by this act shall execute a bond in the sum of not less than one thousand ($1,000.00) dollars, to be approved by the superintendent conditioned that none of said liquors shall be used or disposed of for any purpose other than in compounding or preserving medicines the sale of which would not subject him to the payment of the special tax required of liquor dealers by the United States, and that he will not violate any of the provisions of this act. Said bond shall be recorded in the office of the superintendent, and the original thereof deposited with the Secretary of State. It shall be unlawful for any retail apothecary or pharmacist to have in or about his said apothecary or pharmacy more than eight gallons of alcohol and five gallons of other liquors at any one time, or to use or keep in or about his apothecary or pharmacy any such liquors for any purpose whatsoever except such liquors as shall have been furnished by the superintendent under the provisions of this act. Any person who shall violate the provisions of this section shall be guilty of a misdemeanor, and in addition thereto shall be liable to penalty of not less than fifty ($50.00) dollars, nor more than five hundred ($500.00) dollars for each offense. It shall be the duty of the county attorney to bring suit on any bond executed by such persons for the recovery of any such penalty." Sess. Laws 1907-08, p. 594, c. 69.

Whatever the personal views of the members of this court may be upon this question, it must be remembered that it is our sworn duty to decide this, as well as all other questions, according to the law as it is, whether we like the law or not. The judge who would attempt to defeat or misconstrue the law of the land simply because he did not personally approve it, or who, Pontius Pilate-like, would attempt to keep his fingers upon the public pulse, and allow public clamor to cause him to swerve one iota from a correct declaration of the law, is utterly unworthy of the confidence and respect of right-thinking people, and establishes precedents which will result in the subversion of our institutions, and the ultimate defeat and destruction of justice itself. The true judge maintains the integrity of his character, and enforces the law as it is, without regard to his personal feelings, or any consequences which may ensue to himself, let his conduct please or displease whomsoever it may. If he does not do this, he is a coward, a perjurer, and a traitor, a disgrace to the position which he occupies, a curse to the people among whom he lives, and should receive the contempt of all honest people. It should also be remembered that the law of the land not only means the law of our own state, but also includes the Constitution of our state, and above all the Constitution of the United States. Section 2 of our own Constitution is as follows: "Sec. 2. Constitution of United States Supreme. Section 1. The state of Oklahoma is an inseparable part of the federal Union, and the Constitution of the United States is the supreme law of the land." Const. art. 1, § 1 (Bunn's Ed. § 2). Article 6 of the Constitution of the United States contains the following: "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding."

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