Weston v. Territory

• Decision Date: 11 November 1908
• Citation: 98 P. 360,1 Okla.Crim. 392,1 Okla.Crim. 407,1908 OK CR 34
• Parties: WESTON v. TERRITORY.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

98 P. 360

1 Okla.Crim. 392, 1 Okla.Crim. 407, 1908 OK CR 34

WESTON v. TERRITORY.

Court of Criminal Appeals of Oklahoma

November 11, 1908

Syllabus by the Court.

In an indictment for committing an offense against a statute, the offense may be described in the general language of the act but the description must be accompanied by a statement of all the particulars essential to constitute the offense or crime and to acquaint the accused with what he must meet on the trial.

[Ed Note.-For other cases, see Indictment and Information, Cent Dig. §§ 289-294; Dec. Dig. § 110. ^[*]

An information or indictment for selling malt, spirituous, or vinous liquors, or any intoxicating drinks, in violation of section 3407, Wilson's Rev. & Ann. St. 1903, must give the name of the person to whom the sale was made, so that the defendant may know what particular offense he is called upon to defend against.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 237-239; Dec. Dig. § 219. ^[*]]

An information for giving away, upon any pretext, malt, spirituous, or vinous liquors, or any intoxicating drinks, in violation of section 3407, Wilson's Rev. & Ann. St. 1903, must state the name of the person to whom the gift was made, and the pretext under which the gift was made must also be stated, so that the defendant may know what offense he is required to defend against.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 229; Dec. Dig. § 220. ^[*]]

When an indictment is fatally defective, and there is no testimony in the case tending to show a violation of law, the conviction will be reversed, with directions to dismiss the case.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 3222; Dec. Dig. § 1188. ^[*]]

Appeal from Woods County Court; W. T. Wilson, Judge.

Henry Weston was convicted of violation of the liquor law and appeals. Reversed and remanded.

On the 13th day of July, 1905, the following information was filed in the probate court of Woods county, Okl. T., against Henry Weston, hereinafter called defendant, and Thomas Fox, viz.:

"Territory of Oklahoma, Plaintiff, v. Henry Weston and Thomas Fox, Defendants. Amended information. Comes now Luther Martin, the duly elected, qualified, and acting county attorney, within and for said Woods county, territory of Oklahoma, in the year of our Lord one thousand nine hundred and five, in the name and authority and on behalf of the territory of Oklahoma, information makes: That on the 23d day of June, 1905, in the county of Woods and territory of Oklahoma, Henry Weston and Thomas Fox did then and there sell at retail and give away malt, spirituous, and vinous liquors, and intoxicating drinks without having obtained a license for the sale thereof, and that said liquors were not made from grapes grown or raised by the said Henry Weston and Thomas Fox on land owned or occupied by them in the territory of Oklahoma, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the territory of Oklahoma. Luther Martin, County Attorney."

Said amended information contains the following indorsement:

"Territory of Oklahoma, County of Woods, -ss.: Personally appeared before me the undersigned authority, J. Henry Walker, who, being of lawful age and first duly sworn on his oath, says that he has read and knows the statements and allegations contained in the within information, and that the same are true. J. Henry Walker.

"Subscribed and sworn to before me this 13th day of July, 1905. T. D. Nash, Probate Clerk."

On the same day defendant filed his demurrer to said information, which was overruled by the court, to which defendant duly reserved an exception. On the 14th day of July, 1905, the jury returned a verdict finding Thomas Fox, who was jointly charged with the defendant, with the offense named in the information, not guilty, and also a verdict finding the defendant guilty as charged. A motion for a new trial was filed and overruled, and the defendant brought this case to the Supreme Court of Oklahoma Territory by appeal. When the state of Oklahoma was admitted into the Union this case, under the provisions of our Constitution and the enabling act, was transferred to the Supreme Court of the state. Upon the creation of the Criminal Court of Appeals the Supreme Court, as directed by law, transferred the case to this court.

Snoddy & Son, for appellant.

W. C. Reeves, Asst. Atty. Gen., for the Territory.

FURMAN P.J.

In view of the disposition which we feel it to be our duty to make of this case, as in all probability it will never be tried again, and as the law upon which the information was based has been superseded by the constitutional and statutory provisions upon prohibition, we do not deem it necessary to do more than discuss and decide the vital questions in the case. These questions are, first, the sufficiency of the information; secondly, the sufficiency of the evidence.

First. In our judgment the information is fatally defective in attempting to charge a violation of law in the matter of selling at retail, or giving away, "malt, spirituous and vinous liquors and intoxicating drinks" in violation of law. Section 3407, Wilson's Rev. & Ann. St. Okl. 1903, is as follows: "Any person who shall sell at retail or give away upon any pretext, malt, spirituous, or vinous liquors, or any intoxicating drinks without having first complied with the provisions of this act, and obtained a license, as herein provided, shall for each offense be fined," etc. It is seen that to sell at retail under the conditions named in the statute was an offense against the law, pretext or no pretext. But the giving away must have been "upon any pretext," or there was no violation of law. This being a part of the section of the statute creating the offense, the very language of the statute, or words of similar import, must have been used in the information. In Slover v. Territory, 5 Okl. 509, 49 P. 1010, Judge Tarsney said: "In criminal cases the accused has the constitutional right 'to be informed of the nature and cause of the accusation.' Const. U.S. Amend. art. 6. The indictment must set forth the offense with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged, and every ingredient of which the crime is composed must be accurately and clearly alleged. It is an elementary principle of criminal pleading that the indictment must furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause, and also to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction if one should be had. For these facts are to be stated and set forth in the indictment with reasonable particularity of time, place, and circumstances. United States v. Cruikshank et al., 92 U.S. 542, 23 L.Ed. 588; Cooley's Const. Lim. 374; Wharton's Crim. Plead. & Prac. 153." In Lawton v. Territory, 9 Okl. 458, 60 P. 94, Judge Hainer said: "However, all the courts hold that it is necessary to allege, in the indictment or information, every essential element of the crime, and that an indictment or information which fails to do so is bad." In Perkins v. Territory, 10 Okl. 506, 63 P. 861, the Supreme Court held that: "If the charge in the indictment is substantially in the language of the statute, it is sufficient, and the language used should receive its common and ordinarily accepted meaning." These...