The accused relies on the following assignments of error:
"(1) The court erred in overruling the motion to discharge; (2) the court erred in overruling the demurrer to the *Page 347 information; (3) the court erred in overruling the motion in arrest of judgment; (4) the court erred in overruling the motion for a new trial; (5) the court erred in overruling the objection of the accused to the introduction of any evidence in support of the information."
The first three assignments of error raise the question as to whether or not the accused was properly before the court below, and whether or not the information charges the commission of a public offense or crime, and, if an offense is charged, whether or not more than one offense is charged in the information. The accused contends that sustaining the demurrer to the affidavit or complaint nullified and destroyed it, and that it could not be made the basis for new information; that a new, or other affidavit, charging him with the commission of a specific crime before an information could lawfully be filed, and the fact that an information was filed after the demurrer was sustained, did not have the force of continuing the jurisdiction of the court over the person of the accused. The learned counsel for the accused failed to cite any authorities to support this contention. The court undoubtedly sustained the demurrer for one or more of the reasons stated in the demurrer, which are: (a) That the affidavit or complaint is not sufficient in law to charge the accused with any offense; (b) that it was not signed by the county attorney; and does not purport to be an information filed by the county attorney; (c) because there is no law authorizing the prosecution against the accused without indictment; (d) because there is no law authorizing the court below to proceed or prosecute any cause until the Legislature provides a procedure for the same; (e) because there is no act of the Legislature providing for the enforcement of the offense attempted to be charged in the complaint. The court could well, and no doubt did, sustain the demurrer for reasons stated in the first and second grounds of the demurrer, because there was no authority of law authorizing prosecutions of the character set forth in the affidavit, without information being filed by the county attorney, as required by law. We think, therefore, the trial court was right in sustaining the demurrer. *Page 348
The sustaining of the demurrer, however, did not destroy the affidavit of L.W. Collier, which was, in all respects, a sufficient complaint under oath, and complies with section 5306, Wilson's Rev. Ann. St. 1903, of this state. The affidavit in question is specific, and properly charges a public offense, not upon information and belief, but affiant positively and unequivocally swears that the accused is guilty of such offense. Upon this affidavit the county attorney predicates the first information, which was filed after the demurrer was sustained to the affidavit for the reasons above stated, and the affidavit in question is filed with the information, and is made a part thereof. The county attorney had the right, under section 5307, Wilson's Rev. Ann. St. 1903, of this state, to amend the information at any time before the defendant pleads, without leave of court and could amend same after plea, on order of the court, when the same can be done without material prejudice to the rights of the accused; and no amendment shall cause any delay of the trial, unless for good cause shown by affidavit. This question was decided by this court in Howard v. State, ante, p. 200, 101 P. 131, and Markinson v. State, ante, p. 323,101 P. 353. The information, being based upon an affidavit properly sworn to, and charging the commission of a public offense, gave the county court jurisdiction over the accused without again placing him under arrest. This court in Ex parte McNaught,1 Okla. Cr. 528, 99 P. 241, held, that the provisions of the Constitution of this state respecting prosecution by information were self-enacting, and therefore legislation vitalizing such provisions was unnecessary.
The accused also contends that he has been improperly convicted, because the information "tends to charge" two offenses, by charging that he committed the crime of "selling and furnishing intoxicating liquors." This court does not agree with the contention of counsel for the accused that the information in the case at bar charges two offenses. On the contrary, we are clearly of the opinion that the indictment charges but one offense. Section 1, art. 3, of the Billups Law (Laws 1908, p. 603, c. 69), provides *Page 349 that it shall be unlawful for any person, individual or corporate, to manufacture, sell, barter, give away, or otherwise furnish, intoxicating liquors, etc. The manufacture, sale, barter, giving away, and otherwise furnishing such liquors is but one offense, which can be committed in the various ways set out in the statute — that is to say, by manufacturing, selling, bartering, giving away, or otherwise furnishing intoxicating liquors — and can be alternatively charged, and the indictment or information would not be bad for duplicity. If, however, the pleader seeks to charge the offense of unlawfully furnishing intoxicating liquors, the manner and means incident to the furnishing must be alleged in the indictment or information with such particularity as to fully and properly advise the accused as to the exact offense he is called upon to defend. If, however, an information or indictment charges two or more offenses in one count, and the accused sought to take advantage thereof on account of duplicity, it would be necessary for him to take steps to require the prosecutor to elect upon which charge of the offense he would rely for a conviction, and thereupon, by operation of law, the offenses other than the one upon which the prosecution elected to proceed would be abandoned. In misdemeanor cases it is too late to interpose an objection to an indictment or information for duplicity after verdict.
The above stated doctrine is well settled; many well-considered cases holding that it applies also to charges of felony. In Fisher v. State, 33 Tex. 792, it is held:
"The true rule is that, when two or more felonies are charged in the same indictment, the indictment may be quashed, or the prosecutor be compelled to elect upon which charge he will proceed; and, if the fact that two or more offenses are contained in the indictment be not discovered until the trial is in progress, the prosecution should then be abandoned, except as to the offense which the prosecutor elects to proceed upon."
Numerous cases sustain the doctrine announced in the Fisher Case, and it appears to us as reasonable and sound, especially, if *Page 350 the record fail to show that the substantial rights of the accused have not been prejudiced by such duplicity.
The accused also alleges in his motion for a new trial that the jury was influenced in arriving at its verdict by evidence outside of court, and upon evidence not submitted to the jury in open court at the trial thereof, to wit, by statements made by members of the jury in relation to other sales of intoxicating liquor made by the accused, to which said jurors claimed to have personal knowledge, and that therefore the verdict was obtained by improper means. In support of this ground of the motion the affidavit of M.B. Hickman, one of the jurors, is filed and made a part of the record in this case. The record also discloses that the affidavits of J.C. Blevins and Arch Forgery, two other members of the jury in this case, are also filed in the record, and they each deny the statements contained in the affidavits of the juror Hickman. Without referring to the competency of the affidavit of the juror Hickman, which seeks to impeach the verdict in which he participated as a juror, and passing upon the weight of the testimony for and against this ground of the motion we find that said ground is not supported by the evidence, and therefore said assignment of error must fail for want of proof to sustain it. We fail to find from the record of the case at bar wherein the rights of the accused have in any way been violated or prejudiced. Hence the trial court did not err in overruling the motion to discharge the accused, the demurrer, and the motion in arrest of judgment.
The accused says that the trial court erred in convicting him in this case because he was drunk, and did not know what he was doing, and hence not capable of committing a crime. This defense was urged in the trial court, and the evidence on both sides submitted to an impartial jury, who determined the issue against the accused, and this court will not disturb the verdict, because we think it is fully sustained by the evidence. This court has little sympathy with defenses which require proof of the commission of another offense to shield the accused from punishment. *Page 351
Having carefully considered all the questions raised by the brief of the accused, and finding no reversible error, the judgment and sentence of the county court of Coal county is affirmed, and it ordered that a mandate issue from this court to the proper officers of said county, directing that said judgment and sentence be executed without unnecessary delay.
FURMAN, PRESIDING JUDGE, and DOYLE, JUDGE, concur.