Weston v. Territory

FURMAN, Presiding Judge (after stating the facts as above). In view of the disposition which we feel it to be our duty to make of this case, as in all probability it will nevei be tried again, and as the law upon which the information was based has been superseded by the constitutional and statutory provisions upon prohibition, we do not deem it necessary to do more than discuss and decide the vital questions in the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. Okla. 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 useSd in the information. In Slover v. Territory, 5 Okla. 509, 49 Pac. 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 *411 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 cir-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 Okla. 458, 60 Pac. 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 Okla. 506, 63 Pac. 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 decisions are in harmony with the overwhelming weight of the decided cases, and with the philosophy of the law, and meet our entire approval. The statute under discussion was taken from Nebraska. In the case of State v. Ball, 27 Neb. 604, 43 N. W. 399, the Supreme Court of that state said: “The section under consideration was evidently intended to prohibit the sale of intoxicating liquors by those having no license to engage in the traffic. This is the primary object of the law. In order to make the prohibition effective, the Legislature saw proper to provide against its evasion by subterfuge or prtext in giving away, as by the sale of articles of no value, accompanied by a gift of the liquor, or by an ostensible or colorable transaction, by which the liquor could be disposed of without a sale, and yet constitute the principal element of the sale or barter. *412 Webster in his Unabridged Dictionary defines the word 'pretext’ as ‘ostensible reason or motive assigned or assumed as a color or cover for the real reason or motive; false appearances; pretense.’ It was evidently not the intention of the Legislature to make the simple act of giving, away intoxicating liquors a crime without reference to the circumstances, necessities, or conlitions attending the giving; and therefore the giving of intoxicating liquors, when wholly unaccompanied by an intention to evade the law, is not necessarily a crime. We are strengthened m this view by reference to section 31 of the same chapter (Comp. St 1895, c. 50, § 31), which makes it a crime for any person to treat another or to give away any liquor, beer, wine, or intoxicating beverages whatever, purchased and to be drunk in any saloon, or other public place where such liquors or. beverages are kept for sale. If it had been the intention of the Legislature to make the giving away of intoxicating liquors a crime in all cases, then the enactment of the section above referred to would have been wholly useless, as the offense would have been completely covered by section 11 above quoted. If the giving ‘was upon any pretext,’ for the purpose of evading the law, the pretext, under which it was given would have to be set out substantially in the indictment. The indictment in this case, therefore, did not charge the crime of ‘giving away’ under the provisions of the section quoted, and did not charge a violation of the law in that particular. We think, also, that the contention of counsel for the district court that the indictment was vague and uncertain, as charging both the selling and giving away, within the meaning of the statute, of the same article of intoxicating liquors, cannot be maintained. As we have seen, in order to constitute a crime, the giving must be upon some pretext for the purpose of evading the law, and the term ‘giving away.’ does not inport such an act. This being true, the allegation of the indictment can charge nothing more than the sale and delivery of the liquor to the person named. That it might have been better pleading to charge in direct terms the sale and delivery of the liquor is perhaps true (although the term ‘sale’ probably includes both), yet we cannot see that more than this was charged.” In United States v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516, the Supreme .Court held that: “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 *413 of all the particulars essential to constitute the offense or crime, and to acquaint the accused with what he must meet on trial.” It will not be denied that, in cases of obtaining money or goods under false representations, the indictment or information must not only use substantially the language of the statute in charging the offense, but must go further and give the representations made which are claimed to be false, and also give the name of the party defrauded, and state all of the material details of the transaction. Otherwise is it manifest that a defendant could not prepare to make his defense or plead a judgment, either of acquittal or conviction in bar of a subsequent indictment for the same offense. So in the case at bar the indictment should have given the name of the person to whom the alleged sale was made, and should have alleged that the gift was upon a pretext, and have stated what the pretext was, and the name of the person to whom the pretended gift was made. The necessity for this rule of law is clearly stated in Dixon v. State, 21 Tex. App. 520, 1 S. W. 450. The court said: “In the case of the offense with which the defendant has been convicted, this -rule is particularly applicable, because the accused party may have sold intoxicating liquors to a thousand different persons without, in a single instance, having violated the law. The sales may have been to persons who had proper prescriptions, or the liquor sold may have been for sacramental purposes. How is he to know what particular sale he is to asswer for unless the indictment in some way identifies the sale complained of by the state as a violation of law? Must he come prepared to prove the legality of each of the thousand sales he has made ? To require this would be unreasonable and oppressive. It is not unreasonable to devolve upon the state the not difficult duty of informing the accused which one of the sales made by him is complained of as unlawful. We think that he is entitled to this information, and because in this case the indictment did not afford such information, it is uncertain and bad, and the trial court erred in overruling the exception to it, for which error the judgment is reversed, and because the indictment is defective in the matter of substance, the prosecution is dismissed.” We fully concur in the views expressed in these authorities. *414 Second. Upon an examination of the evidence we find that there is not a particle of testimony of any sale. There is evidence of the defendant having given away intoxicating drinks, but thert is nt> evidence of “any pretext,” or that such giving was a subterfuge to evade or defeat the law. For these reasons the trial court erred in not sustaining defendant’s demurrer to the indictment, and also erred in orerruling defendant’s motion for a new trial. While this court is anxious to sustain the proceedings in trial courts, it can only do so when they are in conformity with the law. This judgment is therefore reversed, and the cause remanded, with directions to the trial court to sustain defendant’s motion for a new trial and his demurrer to the information, and dismiss the prosecution and discharge the defendant. BAKER and DOYLE, Judges, concur.