Schwedes v. State

1909 OK CR 19, 104 P. 765, 1 Okla. Crim. 660, 1909 Okla. Crim. App. LEXIS 14

Opinions

The record discloses the fact that there was involved in this case a construction of the clause in the United States Constitution, commonly known as the "Interstate Commerce clause". The law creating this court contains the following provisions:

"If in any cause appealed to the Criminal Court of Appeals, in which the construction of the Constitution of this state, or of the United States, or any act of Congress is brought in question, the said Criminal Court of Appeals shall certify to the Supreme Court of the state, the question involving the construction of the Constitution of this state, or of the United States, or any act of Congress, for the final determination of the question so certified. Thereupon all further proceedings in said cause in the Criminal Court of Appeals shall await the decision of the Supreme Court upon such question. Upon the final decision of such question by the Supreme Court, said Supreme Court shall certify its decision on such question to the Criminal Court of Appeals, and said decision of such question by the Supreme Court shall govern said Criminal Court of Appeals."

In conformity with this section of the statute, the constitutional question involved in this case was certified to the Supreme Court for its determination. In answer to this certificate we have received the following opinion of the Supreme Court:

On certificate from the Criminal Court of Appeals.

William Schwedes was convicted of conveying intoxicating liquor from one place in the state to another, such liquor not having been lawfully purchased as authorized by the Constitution of the state, and he brought error to the Criminal Court of Appeals which court certifies the question to the Supreme Court as involving the construction of Const., art. 1, § 9 (Bunn's Ed. § 499), prohibiting the shipment or conveyance of intoxicating liquor from one place in a state to another, except the conveyance of a lawful purchase. Reversed.

This cause was certified from the Criminal Court of Appeals to this court, as involving the construction of that part of the Constitution of the state of Oklahoma which prohibits the shipment or conveyance of intoxicating liquors from one place in the state to another place therein, except the conveyance of a lawful purchase. Section 499 of Bunn's Edition of the Constitution (section 9, art. 1, of the Constitution; Gen. St. Ann. Okla., 1908, p. 76).

The plaintiff in error was convicted on the 30th day of December, 1907, in the county court of Grant county, in a prosecution by information which charged that he, the defendant in the trial court, did on the 20th day of December, 1907, in Grant county, unlawfully and willfully carry and convey certain intoxicating liquors, to wit, 12 quarts of whiskey, from one place in said state, to wit, the depot of the Chicago, Rock Island Pacific Railway Company, in Pond Creek, in Grant county, to another place in said state, to wit, the livery barn of said Schwedes in Pond Creek, said liquor not having been lawfully purchased as authorized by the Constitution of the state of Oklahoma.

The defendant in said court asked for several instructions, which were refused by the court, in words and figures as follows, to wit:

"No. 7. If you find the liquor charged to have been carried by the defendant had just been imported by a common carrier, from some person in another state of this Union, and that the same was imported for the personal use of the defendant, then the defendant had a right to receive and carry and convey the same to his own house or apartment, in the original package, for his personal use, as long as there was no intent on his part to sell or dispose of the same contrary to law, or to put the same to an unlawful use." "Refused: Exception to defendant. H.H. Rogers, county Judge."

"No. 8. If you find that the liquor which was charged to have been carried by the defendant was in the original package and the property of the defendant, and had been imported from another state or foreign country by a common carrier for his own personal use and consumption, and not for the purpose of sale, barter, or exchange, then you should find the defendant not guilty." "Refused: Exception to defendant. H.H. Rogers, County Judge."

"No. 10. You are instructed that if you find that the defendant did carry the intoxicating liquor charged in the information, and that the same was imported from a foreign state or country, for his own use and consumption and not for the purpose of barter, sale or exchange, then the defendant had a right to receive the same and carry it to his own apartments, in the original package that it was shipped in, so long as he did not convey same for any other use." "Refused: Exception to defendant. H.H. Rogers, County Judge."

These instructions were based upon the testimony of the defendant himself, which is substantially to the effect that he had gotten a box of liquor at the depot at Pond Creek, and had started to take it to his home, and whilst he was on his way thereto he was arrested by the sheriff of Grant county and taken to his livery barn, where the box was opened and the contents seized by the officer; that the liquor he was carrying was shipped to him by Stulz Bros., liquor dealers, at Kansas City, Mo., that said liquor was shipped to him by said Stulz Bros. in the pursuance of an agreement had with a salesman in the employ of said Stulz Bros., who stated to said defendant that he would send him something to drink Christmas; that he got the liquor for himself and family, for their own use, for a "Christmas drink," as said by the defendant.

The requested instructions on the part of the defendant in the trial presented the question of the right of a person to purchase in good faith for his own use, intoxicating liquors in a foreign or another state, and have same sent to him by express or other means of transportation, and whether the consignee might go to the express office or depot and receive the liquor so purchased and carry same to his residence for his use.

The refusal of the trial court to give the instructions requested is assigned as error in the Criminal Court of Appeals, and it was considered by that court that the construction of the Constitution is brought into question, and this proceeding is by virtue of the provisions of section 2, art. 1, c. 28, p. 291, of the Session Laws of Oklahoma, 1907-08 (section 2214, art. 12, Gen. St. Ann. Okla., 1908) certified to this court.