123 P. 1027 | Okla. Crim. App. | 1912
First. In their brief counsel for appellant complains of the action of the trial court in overruling the motion of appellant to set aside the information and overruling the demurrer to the information. The information in this case contains two counts. The first count charges the appellant with unlawfully selling one pint of whisky to one George Dailey; the second count charges the appellant with having in his possession whisky with intent to barter, sell, and give away the same. The question presented is as to whether it is permissible for an information or indictment to charge two or more separate and distinct *355 offenses. Whatever the practice may be in other states, this question, under the Constitution and laws of Oklahoma, can have but one answer. The Constitution declares that a defendant "shall be informed of the nature and cause of the accusation against him and have a copy thereof." See Williams' Const. of Okla., sec. 20, art. 2. This evidently contemplates that an information or indictment shall include but one accusation.
Section 6699, Comp. Laws 1909, is as follows:
"The indictment must charge but one offense, but where the same acts constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment and the accused may be convicted of either offense, and the court or jury trying the cause may find all or either of the persons guilty of either of the offenses charged, and the same offense may be set forth in different forms or degrees under different counts; and where the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count."
It is true that in the case of DeGraff v. State,
Second. The court instructed the jury as follows:
"If you should find in this case, that on or about the 18th day of February, 1910, the defendant did have in his possession intoxicating liquors, to wit, whisky, with intent to sell, barter, or give away the same or any part thereof to one Geo. Dailey or to defendant's friends or any other person, then the defendant is guilty of the offense charged and you should so find."
This instruction is fatally defective, because it does not inform the jury that they should find from the evidence in the case beyond a reasonable doubt that the facts therein stated were true, before they could convict the appellant.
In the case of Remer v. State,
"The court gave the jury the following instruction:
"`No. 2. The court instructs the jury that if you believe from the evidence that the defendant, Sam Remer, did at the time and place alleged in the information barter, sell, or give away intoxicating liquor, to wit, whisky, to one Rufe Correll, it will be your duty to find the defendant guilty.'
"The defendant objected to the giving of this instruction in this form, and his objection being overruled, saved an exception. The objection to the instruction was well taken. This instruction went to the very gist of the case. It might be termed the substantive instruction in the cause; the one embodying the elements of the crime charged, and informing the jury under what circumstances they should convict the defendant, and to which every other instruction given was merely adjective or explanatory. And that being true, it was essential that this instruction should be correct. But it is not. It tells the jury that if they only believe from the evidence that the defendant sold the whisky, then it is their duty to convict. How strong that belief should be the jury *357
were not told. Under this instruction they were authorized to convict even upon a vague, uncertain belief founded upon a bare preponderance of the evidence; whereas the statute and the adjudged cases require that the belief be a positive one and based upon evidence possessing that degree of probative weight and force that it satisfies the minds of the jurors of the defendant's guilt beyond a reasonable doubt. Claxton v. Com.
(Ky.)
"The court instructs the jury that if they believe from the evidence in this case beyond a reasonable doubt that the defendant, Sam Remer, in this county and state, on or about the 1st day of February, 1908, did sell whisky in any quantity whatever to one Rufe Cornell, then it will be your duty to find the defendant guilty as charged in the information. On the other hand, if, upon a consideration of all of the evidence in this case, you entertain a reasonable doubt as to whether the defendant, in this county, on or about the date mentioned, did sell whisky to the said Rufe Correll, then you should acquit the defendant."
For the errors hereinbefore pointed out, the judgment of the lower court is reversed and the cause is remanded for a new trial.
ARMSTRONG and DOYLE, JJ., concur. *358