This was a criminal prosecution under the liquor license law of Oklahoma Territory.
The first proposition contended for is that "the court erred in overruling defendant's demurrer to the indictment." Counsel for appellant predicate this proposition upon the assumption that the offense charged was a violation of section 3410, Wilson's Rev. Ann. St. 1903, which reads as follows: "Every person who shall sell or give away any malt, spirituous, and vinous liquors on the day of any special or general election or at any time during the first day of the week, commonly called Sunday, or who shall keep an open saloon after midnight, or open same before five o'clock in the morning shall forfeit and pay for every such offense the sum of one hundred dollars" — and contends that the aforesaid section provides for a forfeiture only, but does not make the offense charged a misdemeanor. Counsel for the state in their brief argue that: "It is not denied that the section of the statute quoted contemplates a forfeiture of money in case the things *Page 503 inhibited by the law are done, and that this means that the person who sells liquors as prohibited subject themselves to suit on their bond and the payment of money. But it is also true that the indictment in this case charges the unlawful and wrongful selling of `malt, spirituous, and vinous liquors.' This language is broad enough to cover the offense, and bring it within the meaning of section 2616, Wilson's Statutes," which reads as follows: "Every innkeeper, or person licensed to sell liquors, who sells or gives away any strong or spirituous liquor, or wine, upon Sunday, is guilty of a misdemeanor." Counsel for the state conclude as follows:
"The record fails to substantiate this conclusion, and it would appear otherwise from the fact that the court, in imposing sentence and rendering judgment, did not fix the fine at $100, as provided by section 3410, cited, but did impose a fine of $150, which would conclusively lead to the presumption that the fine was assessed under section 2616, rather than section 3410, and that defendant was tried and convicted under section 2616,supra."
We believe that this indictment was intended to charge an offense under section 2616, Wilson's Statutes. This section only applies to innkeepers, or persons licensed to sell intoxicating liquors. It was intended to reach the case of a licensed liquor dealer, who, under the provisions of the act to regulate the traffic in intoxicating liquors, should violate the conditions of his license as expressed in the foregoing section. The indictment does not aver that the defendant was an innkeeper or a person licensed to sell liquor. In a prosecution under said section this became a necessary and essential allegation. The record shows that proof was offered, tending to show that defendant was a licensed liquor dealer at the time alleged. For this reason we are of opinion that the indictment lacks the certainty required in criminal pleading, and is therefore insufficient.
"It is undisputed law that, when a statute enacts that any one of a certain class of persons, who shall do or omit a certain act under certain circumstances, shall be guilty of a crime, the indictment must describe the person indicted as one of that class, *Page 504 and aver that he did or omitted the act under the circumstances which made it a crime. Every one of these things is an essential constituent of the crime." (State v. Sloan, 67 N.C. 357.)
See, also, Titsworth v. State, ante, p. 268, 101 P. 288.
The defendant's demurrer should have been sustained. It is evident that the indictment is not direct and certain as regards the offense charged, and the particular circumstances of the offense charged that are necessary to constitute a complete offense under said section. Section 5358, Wilson's Statutes provides:
"The indictment must be direct and certain as it regards: First, the party charged; second, the offense charged; third, the particular circumstances of the offense charged, when they are necessary to constitute a complete offense."
It is a well-settled principle of criminal pleading that, where a statute creates and defines an offense, an indictment or information which does not allege all the essential elements constituting such offense is insufficient.
With this view of the case, it is not necessary to pass upon the assignment of error in relation to the instructions given.
The judgment of the district court is therefore reversed, and the case remanded, with directions to sustain the demurrer to the indictment.
FURMAN, PRESIDING JUDGE, and OWEN, JUDGE, concur. *Page 505