Walker v. State

1912 OK CR 475, 127 P. 895, 11 Okla. Crim. 339, 1912 Okla. Crim. App. LEXIS 468

Opinion

FURMAN, P. J.

(after stating the facts as above). Any person residing or being within that portion of the State of Oklahoma which formerly comprised Oklahoma Territory has the undisputed right to purchase in another state and have shipped to him in this state intoxicating liquors, and have such liquors delivered to his residence or place of business for his personal use or use of his family, and such liquors are safe from interference by virtue of any state law until they reach their point of destination. This right is based upon and protected by the interstate commerce clause of the Constitution of the United States, and cannot be interfered with by any constitutional provision or law of any state. See Roy Gastineau v. State, 7 Okla. Cr. 512, 124 Pac. 464, decided June 15, 1912. But this does not mean that any person or combination of persons can ship into this state intoxicating liquors as interstate commerce and use the depot at which they are received as the point of their destination, and as a warehouse for the distribution of such liquors, and that such shipments of intoxicating liquors are protected from seizure, or that such persons are exempt from prosecution and punishment for a violation of the state laws on this subject. Any such construction would be a gross perversion of the Constitution and laws of the United States.

The case now before us presents two questions: First, Did the intoxicating liquors handled by these appellants constitute a bona fide interstate shipment? Second, Was the home or place of business of the said John Hall the point of .their destination? The court clearly and fully instructed the jury as to the law on these questions. We seriously doubt if these instructions should have been given, because there is no testimony in the record which even suggests that the liquors handled by appellants constituted bona fide interstate shipments. A¥ho is John Hall? Pías he a family ? AVhere does he reside ? How did it happen that he needed over l,20jl gallons of whisky and over 180 barrels of beer for his own personal use or the use of his family within 90 days ? In what occupation is he engaged, and where is his place of business? Echo answers, Where? If these liquors constituted bona fide interstate shipments, the facts which would establish this were peculiarly within the knowledge of the appellants. It was therefore their duty, in the light of the evidence in the case, to offer this testimony to the court and jury. Even if ignorance of the law was an excuse, appellants are not in a condition to offer this as a matter of defense, because counsel who represent them are recognized as among the ablest in the state. If any such man as John Elall really existed, appellants should have placed him on the witness stand, or accounted for their failure to do so. If the liquors were purchased in good faith by John Hall, in view of the testimony for the state, appellants should have taken the depositions of the parties who made the shipments and proved by them to whom the sales were made, who paid for the liquors, who advanced the freight rates for the shipments on such liquors, and any other facts ^ tending to show the good faith of the transactions. It would be a reflection upon the intelligence and fidelity of counsel for appellants to presume for a moment that they did not know that this evidence would be important, if not necessary, to their clients. If such testimony existed, common experience teaches us that it would have been produced; yet we find that on these vital questions the record is as dumb as an oyster, and as silent as the grave. The failure of appellants to offer such evidence, in view of the nature of the testimony against them, amounts almost to a confession on their part that no such evidence existed, and that in truth and in fact the liquors handled by them did not represent bona fide interstate shipments, and that the entire transactions in which they were engaged only constituted a transparent and utterly indefensible device to evade and defeat the laws of Oklahoma. If such a man as John Hall really existed and resided in Shawnee, it is exceedingly strange that only three witnesses had ever seen him, and they did not know him of their own personal knowledge, but only from representations made to them by these appellants.

V. A. Vogle testified: That some time in December, 1910, appellant Walker came to the depot of the Missouri, Kansas & Texas Railway Company in Shawnee, and introduced to witness a stranger as being John Hall. Witness had no personal knowledge of said John Hall; did not know where he lived; was not acquainted with any member of his family; had never seen said party before or since or learned anything as to his whereabouts.

T. A. Amos testified: That in September or October, 1910, appellant Eslick came into the freight depot of the Rock Island Railway Company at Shawnee with a stranger, and introduced him to witness as John Hall. Witness did not know where John Hall lived, or whether he resided in Shawnee or had a home in Shawnee. That witness had never talked to any person who claimed to know John Hall, except appellant Eslick. He only knew that man was introduced to him as John Hall by appellant Eslick.

Witness W. E. Jones testified that a man had been introduced to him as John Hall by appellant Sam Leslie. Witness did not know where he lived, and was not 'acquainted with any member of his family. He only knew that appellant Sam Leslie told him that the man’s name was John Hall.

The record shows that on each day during which the transactions described • therein took place appellants delivered to the railway company an order purporting to be signed by John Hall for the delivery of intoxicating liquors received that day, and also an affidavit purporting to be executed by John Hall to the effect that such liquors were for his own personal use and use of his family, and were not to be used in violating the laws of Oklahoma. It therefore appears, according to the representations of appellants, that, as long as the existence of the said John Hall was necessary to enable them to carry out their plans, the said John Hall was a living reality, but that, as soon as appellants were called to account for their conduct, the supposed John Hall became as intangible and invisible as thin air. If they could daily produce an order and affidavit from him to enable them to obtain possession of the intoxicating liquors, how does it happen that when they are called upon to account for their conduct, and when the county jail and a severe fine is staring them directly in the face, the said John Hall vanishes from the scene of action like the baseless fabric of a vision? Who saw John Hall during all of this time ? Where and why did he keep himself concealed, and where is the notary public who took the acknowledgments to these affidavits? What has become of these affidavits? The state had a subpoena served upon the witness Yogle to produce at the trial of this cause all of the papers in his possession pertaining to this matter to be used as testimony in behalf of the state, but the witness turned a great number of these papers over to one of the counsel for appellants, as the witness says, to be filed in court, which was never done. Why was this not done? This cannot be considered otherwise than as a strong circumstance against appellants. We deem it due to state that the counsel who now represent appellants did not represent them in the trial court.

If the intoxicating liquors handled by appellants as the property of John Hall constituted bona fide interstate shipments, why was it that appellants did not prove by their wagon drivers that such liquors were delivered in good faith to the home or place of business of the said John Hall? Why this secrecy and this concealment ? How can it be said that innocent men, with almost certain conviction staring them in the face, could have such evidence in their possession and neglect, fail, and refuse to present it? Their neglect in this respect is a most convincing circumstance against them. Again, if appellants did not know that they were violating the law, why did they not deliver all of the liquors received in one day in one load? Why did they make five or ten loads out of what they could and should have hauled in one load? Were they trying to rob John Hall by multiplying the trips, or were they trying to defeat the law? The jury took the latter view of the matter, and we cannot say that there is no evidence to support their verdict.

If the appellants were engaged only in handling bona fide interstate shipments of liquors to the home or place of business of John Hall, why was it necessary for appellant Walker and Leslie to obtain a United States license to sell intoxicating liquors? The appellants were all engaged in a common design to accomplish a common purpose, and, when appellant Eslick was informed that his codefendants Walker and Leslie would not be permitted to sign for the liquors they received because they and each of them had a United States license _for the sale of intoxicating liquors, appellant Eslick not only did not deny the charge, but acquiesced in it, and said he would sign for such liquors. Under these conditions, the statement of Eslick bound his associates, for it is the law that, where two or more persons engage in a common design to do an unlawful act, they are all responsible for what is said and done by their co-conspirators in pursuance of this common design to effect a common purpose. See Holmes v. State, 6 Okla. Cr. 541, 119 Pac. 430, 120 Pac. 300. Conspiracies to violate the law are always secret, and every effort is made at concealment. Therefore, such conspiracies can only be proven by circumstantial evidence.

The evidence brought knowledge squarely home to Eslick that those with whom he was acting in pursuance of a common design were charged with being in possession of a United States license to sell liquor. To say the least of it, it then became the duty of these parties to offer some testimony either denying or explaining this matter. Notice to Eslick was notice to Walker and Leslie, with whom he was acting. Men can bind themselves with conduct as well as by words. In fact, it is an old adage that actions speak louder than words. Silence gives consent. This is especially so where the circumstances are such that a reasonable man would speak out and deny a charge if it were not true. Admissions against interest often constitute the highest and most incontestable character of legal evidence, and obviate the necessity of offering direct evidence as to any question or fact which is tacitly admitted either by language or conduct. The fact that appellants knew that the railroad company would not permit Walker and Leslie to sign for and receive the liquors upon the ground that such conduct would be illegal"because of their possession of a United States license to sell liquor, and the want of denial or explanation on their part to this charge, amounts almost to a confession of guilt. The fact that there is no testimony that Eslick had a United States license to sell intoxicating liquor cannot avail him, for persons who knowingly act with those who are violating the law are just as guilty as those with whom they act. This fact, in connection with their possession of intoxicating liquors, made out a prima facie *case against them. They of fer no explanation to this prima facie case. Conscious guilt is the only reasonable explanation of their failure to offer any evidence in their defense. If such evidence existed, it was within their power to produce it. Their failure to do so amounts almost to a plea of guilty. It fully warranted the jury in finding a verdict of guilty, and this court would stultify itself in setting aside a conviction supported by the evidence in this record and to which no defense has been made.

In connection with the other facts in this case, the amount of liquors handled by appellants during this time creates a very strong presumption against them. In the case of Johnson v. State, 6 Okla. Cr. 491, 119 Pac. 1019, this court said:

“We are of the opinion that the amount of intoxicating liquor found in possession of a defendant is a proper circumstance to be considered by the jury in connection with the other facts and circumstances of a case in determining as to whether or not it was the intent of the person having possession of the liquor to illegally dispose of the same in violation of the prohibitory law of the state, but this circumstance alone cannot support a conviction.”

There are a number of other incriminating circumstances in evidence against the appellants, all of which, taken together, are incapable of explanation, except upon the ground that they are guilty. The rule in cases of circumstantial evidence is that, in order to warrant a conviction, the circumstances proven and which are believed to be true by the jury must not only be consistent with the guilt of the accused, but must also be inconsistent with his innocence, and, when this condition exists, it is •the duty of the jury to convict. See Ex parte Jeffries, 7 Okla. Cr. 544, 124 Pac. 924. It is inconceivable that men would fail to offer any testimony in explanation of the circumstances in evidence against them in this case, if the circumstances were capable of explanation, consistent with their innocence.

Third. Appellants contend that the verdict in this case is void for uncertainty, in that it does not appear which one of the appellants the jury intended to convict, or as to whether the jury intended the punishment to be joint or several. The verdict is as follows:

“The State of Oklahoma, Plaintiff, v. A1 Walker, Wm. Eslick and Sam Leslie. Verdict. We, the jury drawn, impaneled, ánd sworn in the above-entitled cause, do upon our oaths find the defendants guilty, as charged in the information, and fix their punishment by a fine of $500.00 and imprisonment in the county jail for a period of 90 days. G. C. Halley, Foreman.”

We do not think that the contention of counsel for appellants is tenable. The appellants were all jointly charged, prosecuted, and tried together, and the court instructed the jury that they might convict or acquit any one or all of the appellants, and that it was their duty to acquit any one of the appellants as' to whose guilt they entertained a reasonable doubt, and to convict only those of the appellants whose guilt was established by the testimony to their satisfaction beyond a reasonable doubt. In the caption of the verdict, the name of each appellant appears, and the verdict is against the defendants in the above-entitled cause. This makes the title of the casé a part of the verdict. We think that from the entire record there can be no question but that the jury intended to convict each one of the appellants. There is nothing in this record to raise a reasonable doubt upon this subject. There are no degrees in the offense of which the appellants were convicted, and there can be no such a thing as a verdict in a criminal case assessing a joint punishment under our law against two or more defendants. We are aware of the fact that some courts have decided that a verdict such as the one before us is bad for uncertainty, but this court is not hunting excuses to set aside verdicts of juries and judgments of courts to turn guilty men loose. But, on the contrary, we believe that a technical construction should never be placed upon the verdict of a jury, but that it should receive a common-sense construction, so as to enforce the evident purpose of the jury.

We are not without authority in support of our views on this matter. In the case of Mootry & Rolly v. State, 35 Tex. Cr. R. 450, 33 S. W. 877, 34 S. W. 126, the appellants were jointly tried and convicted of the crime of murder. The verdict was:

“We the jury, find the defendants, Mat Mootry and Albert Roily, guilty of murder in the first degree, as charged in the indictment, and assess their punishment at death.”

The court said:

“There is no set form or words in which a verdict is required to be written. Therefore, the only rational general rule that can be adopted by which to measure its sufficiency is, Does it show clearly, and without any doubt, the intention of the jury, and their finding on the issues presented to them? If it does, it cannot be declared bad without sacrificing substance and justice to form. No error that is not a violation of some positive rule of law, which may possibly prejudice the defendant, can be a ground for reversal on appeal. See State v. Ryan, 13 Minn. 374 (Gil. 343). No one on reading said verdict would question for a moment that the jury intended thereby to assess the punishment of each of said defendants at death, and the language used, to our minds, imports that idea, and is inconsistent with any other reasonable construction; and, entertaining that view, we hold ihe verdict good, as finding each of the defendants guilty of murder in the first degree, and assessing the punishhment of each at death.”

We also find in the case of Polk & Watts v. State, 35 Tex. Cr. R. 495, 34 S. W. 633, a case directly in point. The defendants were jointly indicted for murder. The verdict of the jury was as follows:

“We, the jury, find -the defendants, Biz Watts and Austin Polk, guilty of murder in the first degree, and assess their punishment at life imprisonment in the state penitentiary.”

The opinion is by Judge Plurt, and the judgment of the lower court was affirmed without argument.

The case of J. F. Davidson & J. B. Thompson v. State, 40 Tex. Cr. R. 285, 49 S. W. 372, 50 S. W. 365, is also in point. In that case the appellants were jointly indicted, charged with theft of one head of cattle. The verdict was as follows:

“We, the jury, find the defendants’ plea of former conviction untrue, and find them guilty as charged, and assess their punishment at two years’ confinement in the state penitentiary. R. H. Hervey, Foreman.”

In considering this case the court said:

“Whatever may have been the rule heretofore in reference to the construction of verdicts of this character, we hold that such a verdict as the one rendered in this case is not now subject to the criticism made to the same by appellants’ counsel. As stated by the court in the case of Mootry v. State, 35 Tex. Cr. R. 457 (33 S. W. 879) : ‘That is certain which can be made certain.’ A bare inspection of the verdict in this case shows that the jury intended to assess a punishment of two years’ confinement in the penitentiary against each of the appellants. The judgment rendered thereon is in direct response to that verdict. In the Mootry case, supra, the verdict there rendered was death upon Mootry and Roily; but we understand the effect of the decision in that case is to overrule the previous decisions of this court, holding verdicts of a similar kind to the one here under discussion void. A fair construction of the verdict in this case will indicate that the jury intended to inflict upon each of the appellants the punishment of two years’ confinement in the state penitentiary. In the consideration of a verdict, the first object is to ascertain what the jury intended to find; and this is to be done by construing the verdict liberally, with the sole view of ascertaining the meaning of the jury, and not under the technical rules of construction which are applicable to pleading. Miller v. Shackleford, 4 Dana (Ky.) 271; May v. Lewis, 4 Tex. 38. And, where the intention of the jury is to be considered, it becomes the duty of the court to disregard a mere clerical error. Jeansch v. Lewis, 1 S. D. 609, 48 N. W. 128. The reasoning in the Mootry case, supra, is cited with approval in the case of Polk v. State, 35 Tex. Cr. R. 495 (34 S. W. 633). We cannot agree with the contention of appellant’s counsel that the verdict of the jury is void, as contended in their motion for rehearing.”

We also find the case of Alejos Garza et al. v. State, 43 Tex. Cr. R. 499, 66 S. W. 1098, in point. In that case three appellants were jointly indicted, prosecuted, and convicted for theft of cattle. • The verdict of the jury was:

“We, the jury, find the defendants guilty as charged in the indictment, and assess their punishment at three years’ confinement in the state penitentiary.”

The court said:

“The verdict of the jury found defendants guilty, and assessed their punishment at three years’ confinement in the penitentiary. The court entered judgment on this verdict of three years against each of the defendants and so pronounced the sentence. Exception was reserved to this on the theorry that it was a joint verdict, and not a separate verdict, as to each. Some of the older cases so hold, but this has not been the rule since the case of Mootry v. State, 35 Tex. Cr. R. 457 (33 S. W. 877); Polk v. State, 35 Tex. Cr. R. 495 (34 S. W. 633). And especially see Davidson v. State, 40 Tex. Cr. R. 285 (49 S. W. 372, 50 S. W. 365).”

We could cite a great number of authorities to the same effect, but will confine our citations to the Texas court alone, as that court is universally recognized as the most technical court in the United States in behalf of defendants.

Upon a review of the entire record, we have no doubt but that the jury has arrived at the proper verdict in this case; that, while some of the instructions of the court may not be above criticism, yet, as the verdict is right upon the entire record, the judgment of the lower court will be affirmed.

DOYLE, J., concurs; ARMSTRONG, J., absent, and not participating.