248 F. 902 | 8th Cir. | 1918
Dossett, defendant below, was'convicted of the offense of carrying liquor from a point outside the state of Oklahoma into that part of the state which prior to statehood was a part of the Indian Territory. The case is here on writ of error, and counsel for defendant urge for consideration the following assignments of error:
No. 3. Refusal by the court below to give certain requested instructions to the jury.
No. 2. Giving by the court below that part of the charge to which specific objection was taken.
No. 4. Overruling the demurrer to the indictment.
These assignments will be taken up in reverse order.
(D “That said indictment is insufficient, and tails to allege tacts showing that defendant is guilty of violating any of the laws of tho United States.”
(2) “That said indictment fails to allege facts sufficient to show that defendant has been guilty of introducing intoxicating liquors into the Indian country within Iho purview of the act of Congress.”
The indictment contains the following language:
“That one Bill Dosset, on the 13th day of August, A. I). 1910, in tho county of Jefferson, state of Oklahoma, in tiie said district and within the jurisdiction of said court, did at tiie time and place aforesaid, unlawfully, knowingly, willfully, and feloniously introduce and carry into the county and district aforesaid, from without the said state of Oklahoma, one quart of vinous, malt, fermented, and intoxicating liquor, to wit, whisky and beer; the portion of said county and district into which the said liquor was so introduced having been within the limits of the'Indian Territory, and a part thereof, prior to the admission of the said state of Oklahoma into the Union as one of the United States of America.”
Counsel for defendant in their brief say:
“The language of the indictment to which we directed the demurrer is as follows: ‘Tiie portion of said county and district into which tiie said liquor was so introduced having been within the limits of the Indian.Territory and a part thereof prior to the admission of the state of Oklahoma into the Union.’ ”
And again counsel say:
“it is our contention that the indictment only by inference alleges that the place where the intoxicating liquors were introduced was formerly a portion of the Indian Territory.”
We agree with counsel that the indictment is subject to criticism as to form; hut defective form does not necessarily render an indictment insufficient. If the indictment contains every element of the offense intended to he charged; if it charges all the facts necessary to enable the defendant to prepare for his defense, and to plead former jeopardy in case he is again indicted for the offense after an acquittal or conviction on the present indictment; if the facts arc stated, so that the court may determine whether, if proven, they would constitute in law the offense charged — the indictment will be sufficient, even though it may be defective as to grammar, and even though some element of
“Now, tlie only liquor involved in this case is the liquor which the officers say they found in the car after it crossed the river and when the arrest was made.”
The objection made is that this charge practically “excluded the defendant’s theory, as well as Isis testimony.” Apparently the defendant’s theory, which was supported to some extent by the testimony of the defendant, was that the defendant did put into the automobile in which defendant and his companions made their trip a sack containing beer, but that this beer was ill consumed before reaching the state line of Oklahoma, and that the other sack containing the whisky, which was seized by the officers afta crossing the line, was placed in the automobile, not by the defendant, but by one of the other occupants of the car. The part of the charge of the court above given must be read in connection with the other portions of the charge immediately accompanying it, and when so read it cannot fairly be said either to have excluded the defendant’s theory or the defendant’s evidence. The particular portion of the charge mentioned was intended to exclude from the consideration of the jury the question whether the carrying of the beer to the line, or near the line, of Oklahoma, would constitute an offense. The court charged that it would not, and that the only liquor they were to consider as liable to convict defendant was the whisky which was carried across the line. Construed fairly, and in connection with the other parts of the charge, this particular part was in defendant’s favor, rather than against him.
“You are instructed that under the evidence in this case the court is of the opinion that the same is insufficient to sustain a conviction against the defendant, and you are advised it would he your duty to return a verdict in his fa-yor. * * * You are instructed 1 hat if you have a reasonable doubt whether or not the defendant placed the whisky in the car, or caused the same to be placed therein, in which the defendant was riding, then, under the law, you must resolve said doubt in favor of the defendant.”
The first of these instructions raises the question whether there was substantial evidence to suslain a verdict and judgment of guilty. It would serve no useful purpose to discuss the testimony of the several witnesses. A careful examination has led us to the conclusion that, though the evidence was conflicting, there was substantial and sufficient evidence to sustain a. verdict of guilty. The requested instruction was rightly refused. The requested particular charge on the subject of reasonable doubt was properly refused: First, because the court had fully and accurately covered the matter in the general charge; and, secondly, because the requested charge was misleading,
Judgment below is affirmed.