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Error from District Court, Kay County ; error to dismiss the petition in error in this before Justice Bayard T. Hainer.

case for the reason that the action was not Action by Frank Hatchell against Arnold filed in this court until more than one year Hebeisen. Judgment for plaintiff, and de after the judgment was rendered on the defendant brings error. Affirmed.

murrer to the cross-petition. This motion C. W. Ransom, for plaintiff in error. Cline

was ordered by the court to be taken with & Duvall and Dale & Bierer, for defendant the case, opinion to be written thereon. The in error.

judgment of the district court dismissing the cross-petition at the time of sustaining the

demurrer was a final judgment, and, under PANCOAST, J. The plaintiff in error and

section 4743 of Wilson's Rev. & Ann. St. 1903, the defendant in error were contestants be

to enable this court to review the judgment fore the Department of the Interior for the

of the district court, an appeal therefrom northeast 14 of section 26, township 28 N.,

should have been taken and an action comrange 1 E., in Kay county, Okl. ; each claim

menced in this court within one year from ing the tract of land under the homestead

the date of the rendition of such judgment. laws. The defendant in error was the suc

More than one year having elapsed before cessful contestant, and was awarded the land.

the appeal was perfected in this case, such The tract was involved in the contest for

judgment cannot be reviewed by this court. a number of years, during which time each

The decision of this proposition decides the occupied a portion thereof.

principal question in this case. The only This action was brought in the district

other questions are that it is claimed that court of Kay county by the defendant in

the court below gave

gave judgment for six error against the plaintiff in error, under

years' back rent, while the Code fixes the section 589 of Wilson's Rev. & Ann. St. 1903,

limitation at three years, and that during to recover the possession and for the sum of

four years of that period this plaintiff had a $920 for the use and occupation of the land

homestead entry on this tract, and, as such by the plaintiff in error. For answer, the

entryman, he had an unquestionable right to defendant below filed a general denial. Aft

the possession under the homestead laws, erwards, by leave of court, the defendant

and it was error to permit a recovery of the filed his cross-petition, setting up, among rents for those years. The plaintiff below other things, the fact that the parties had

asked judgment for $920. The court ren-' been applicants before the Department of the

dered judgment for $500. Upon the question Interior for the land, and that the same had

of damages, evidence was allowed to be introbeen awarded to the plaintiff below, but al

duced covering the entire period during which leging that there was error in the decision

the defendant occupied the premises, tbere of the Secretary of the Interior and a mis

being some variation in the testimony of the application of law, and attempting to set up

several witnesses as to the value of the use sufficient facts to enable him to hold the

and occupancy of the land. No special findplaintiff as trustee for his benefit, and praying

ings were asked for, and none were made. that the plaintiff be adjudged to hold the

The court found generally in favor of the legal title in trust for the defendant, and that

plaintiff. The evidence abundantly supports he be required to convey the same to the the findings. Now here is it pointed out in defendant. To this cross-petition, the plain

the brief of plaintiff in error, nor can we tiff filed a demurrer, on the ground that the

determine froin an examination of the record, said cross-petition did not contain a suffi

that the court found that the plaintiff was cient statement of facts to constitute a cause

entitled to recover for any special period of of action against the plaintiff and in favor of

time, much less for a period of six years. the defendant, or to entitle the defendant to

The plaintiff in error in this case seems any relief thereunder. This demurrer came to content himself in his brief by a mere on to be heard on the 7th day of September,

statement of the proposition that the court 1904, at a regular session of the district

gave judgment for six years' back rent, court of Kay county, and on that date the

and neither by argument or otherwise demurrer was sustained, and judgment ren- attempts to show to this court any reason dered thereon. Thereupon the defendant for such statement. We cannot understand electing to stand upon his cross-petition, a

upon what principles it is clainied, when final judgment was rendered in the case: the homestead entry of the plaintiff in error “That the defendant take nothing under said upon the tract is found to be wrongful, that cross-petition, as contained in paragraphs 1, 2,

during the period of the homestead entry he 3, 4, and 5 of the defendant's answer and

cannot be held for damages for the use and cross-petition, and that the cross-petition

occupancy therefor; nor is any argument adherein be dismissed; to all of which the de

vanced upon this proposition. fendant excepted."

Seeing no error in the judgment of the The appeal in this case was not filed in

court below which can be reviewed by this this court until October 6, 1905, more than

court, the judgment is affirmed. one year after the rendition of judgment upon the demurrer to the cross-petition. A HAINER, J., who tried the case below, motion has been made by the defendant in not sitting. All the other Justices concurring.

(:7 Okl. 515)

exercising due and proper care, and without OKLAHOMA CITY . REED.

fault on his part, le stumbled on and over (Supreme Court of Oklalomna. Sept. 7. 1906.) said hydrant, and then and there fell on MI'NICIPAL CORPORATIONS

DEFECTIVE

said sidewalk, whereby he sustained great STREETS-ACTION FOR INJURIES-PRESUMP- and permanent injuries, having his right TIONS.

arm broken, etc. It will thus be seen that In an action against a municipal corporition for personal injuries, there is no presump

the plaintiif's amended petition not only tion that the plaintiff or defendant is guilty of charges the municipality with negligence, but negligence, and in order to entitle the plaintiff also alleges that at the time the plaintiff to recover it is sufficient for him to show that

received the injuries he was exercising due the defendant was guilty of negligence, with nothing in the circumstances establishing (on

and proper care, and that such injuries octributory negligence on his part; and when suel curred without fault on his part. It is true, facts are proven, it devolves upon the defendant as stated by counsel for plaintiff in error, to prove affirmatively that the plaintiff was

that a municipal corporation has the power guilty of contributory negligence. TEd. Note:--For cases in point, see ('ent. Dig.

to construit and maintain fire hydrants for vol. 36, Municipal Corporations, $ 1727.]

the use and protection of the city. But while Burford, C. J.. dissenting.

it has the right to construct and maintain (Syllabus by the Court.)

such hydrants, they should not be placed in Error from District Court, Oklahoma Coun

such a position as to obstruct and be an

object highly dangerous to pedestrians who ty; before Justice B. F. Burwell.

are traveling upon the sidewalks in accordAction by George Reed against the city of

ance with the usual modes of travel. A muOklahoma City: Judgment for plaintiff. De

nicipal corporation is bound by law to use tendant brings error. Affirmed.

ordinary care to keep its sidewalks, as well G. A. Paul, for plaintiff in error.

as its streets, in reasonably safe condition

for public use, in the ordinary modes of ILAINER, J. This was an action brought

travel, by night as well as by day. And if by George Reed against the city of Oklahoma

it fails to do so, it is liable for injuries City, to recover damages for personal, in

sustained by

by reason of such negligence. juries alleged to have been sustained by bim

Town of Norman V. Teel, 12 Okl. 09, (! on account of the negligence of the city in

Pac. 791. maintaining a dangerous obstruction on the The law is well settled that a person travsidewalk of one of its public streets. The eling upon a sidewalk of a municipal corcause was tried to a jury, and the plaintiff

poration, which is in constant use by the recovered a verdict for $300, and judgment public, has a right, when using the same with was entered in accordance therewith. From

reasonable are, to presume and act upon this judgment the city appeals.

the presumption that it is reasonably safe It is assigned as error that the plaintiff's for ordinary travel, and free from dangerous amended petition fails to state facts sufficient ohstructions or other defects. Dillon, in his to constitute a cause of action, and therefore

excellent treatise on Municipal Corporations, the court erred in not sustaining the defend- (2d Ed.) vol. 2, § 1024, states this doctrine ant's objection to the introduction of evidence. as follows: "Where streets have been renPlaintiff in error contends that the amended dlered unsafe by the direct act, order, or aupetition did not sufliciently aver that the thority of the municipal corporation (not actplaintiff was, at the time of the accident,

ing through independent contractors, the efin the exercise of ordinary care and free fect of which will be considered presently), from fault or negligence on his l'art. ind

no question has been made, or can reasonably it is further contended that it is incumbent

exist, as to the liability of the corporation upon the plaintiff to allege and prove that for injuries thus produced, where the person he was not guilty of contributory negligence.

suffering them is without contributory fault. And in support of this contention the plaintiff or was using due (are." The adjudicated in error has (ited the case of Pittınan v. City cases are in conflict on the question whether of El Reno, 4 Okl. 038, 40 Pac. 49). where the burden of proving contributory neglithe court laid down the rule that in a (ase

yence, or its absence, is on the plaintiff or where a municipal corporation is charged (lefendant. In Indiana and some other juriswith negligence, "it was the ciuty of the plain- diction it has been held that the plaintiff tiff to establish in his case in chief the fact cannot recover unless he alleges and proves that he was not guilty of contributing in that the injury occurred without negligence any manner to the injury received." We do on his part; in other words, that he was not think the amended petition is subject not guilty of contributory negligence. And to this objection.

this was the rule adopted by our court in The material averments of the amenderi the case of Pittman v. City of El Reno, supetition were that the city had maintaineil, pra, but this decision, as we understand it, for a period of more than one year, a water was placed upon that ground for the reason hydraut about 22 inches high, and extending that the Indiana Code was then in force in in the sidewalk about 10 inches from the Oklahoma, and that the decisions of the outer edge thereof. That on the night of courts of that estate were binding on our December 21, 1902, while the plaintiff was court while that statute remained in force here. But, on the other hand, the great burden of proving contributory negligence weight of the American authorities, and the on the part of the plaintiff rests upon the text-writers, as well as of the English au- defendant. In the course of the opinion Mr. thorities, supports the doctrine that it de- Justice Valentine, speaking for the court, volves on the defendant to plead and prove says: “It is

"It is claimed, however, that the contributory negligence; while all the courts burden of proof rests upon the plaintiff to seem to hold the doctrine that, if the plain- show that he was not guilty of contributory tiff's evidence establishes that he was guilty negligence, and not upon the defendant to of contributory negligence on his part, it show that he was. The rule, however, in precludes his recovery, no matter where the this state, is otherwise. Kansas Pac. Ry. burden of proof rests.

Co. v. Pointer, 14 Kan. 38, 50; Kansas City, In our opinion, the true and sound rule, I. & S. R. Co. v. Phillibert, 25 Kan. 583. See, and one which is in consonance with justice, also, Beach, Neg. 430, 157. The law preis that there is no presumption that the sumes that every person performs his duty, plaintiff or defendant is guilty of negligence; and this presumption continues until it is and that in order to entitle the plaintiff to shown affirmatively that he does not, or has recover, it is suficient for him to show that not. Ilence, wherever there is no evidence the defendant was guilty of negligence, with upon the subject, or where the evidence is nothing in the circumstances establishing equally balanced, this presumption in favor contributory negligence on his part. And of the person in question requires that the when such facts are proven, it derolves upon findings of the court and jury should be that the defendant to prove affirmatively that such person has performed his duty, and is the plaintiff was guilty of contributor'y neg- not guilty of any culpable negligence, conligence. In Am. & E. Enc. Law (20 Ed.) rol. tributory or otherwise. IIence, while it may 7, p. 13.), this doctrine is clearly stated as fol- be said, in a general sense, that the burden lows: "Perhaps the true doctrine is that of proving his case devolves upon the plainthere is no presumption of either negligence tiff, yet, if he has shown that the defendor care which is applicable as a general rule ant was guilty of the negligence causing the in all cases, but that the question of the bur- injury complained of, and the evidence tendcien of proof should be determined on the ing to show that he has performed his duty facts of each case according to whether they is at least equal to that which tends to show show a duty of care on the plaintiff or the otherwise, he has made out his case. This lefendant. On principle, it would seem suf- is virtually throwing the burden of proof to ficient to entitle the plaintiff to recover, for show that the plaintiff has been guilty of him to show a negligent injury by the de- culpable contributory negligence upon the deTendant, with nothing in the circumstances fendant, and this has been the uniform holdestablishing contributory negligence on his ing of this court." The doctrine announced part; and this done, it would devolve upon in Pittman v. City of El Reno, 4 Okl. 638, 46 the defendant to show the plaintiff's con- Pac. 495, so far as it is in conflict with tributory negligence affirmatively.”

the rule herein announced, is overruled. It In Lincoln V. Walker, 18 Xeb. 241, 20 N. follows that the amended petition stated W. 113, 5 Am. & Eng. Corp. Cas. 611, the facts sufficient to constitute a cause of action Supreme Court of Nebraska, in passing upon in favor of the plaintiff and against the dethis question, said: "In view of the conflict fendant, and therefore the court properly in the authorities, we are compelled to adopt overruled the objection of the defendant to such rule as may seem most consonant with the introduction of evidence in support therejustice. This being so, there certainly is no of.

It seems to us that the evidence in this presumption that the plaintiff was negligent. case clearly establishes that the plaintiff was We therefore hold the rule to be, that if the in the exercise of ordinary care and caution plaintiff can prove his case without showing at the time he received the injury, and that contributory negligence, it is a matter of de- it was negligence on the part of the city in fense to be proved by the defendant." In maintaining an obstruction that endangered IIough v. Railway Co., 100 U. S. 213—225, the life and limb of the public who were 25 L. Ed. 612, the Supreme Court of the traveling upon the sidewalk in question, and United States has laid down the rule that that the jury were fully warranted in finding in a case of this kind the burden of proof

the issues in favor of the plaintiff. And, is upon the defendant to show contributory moreover, the damages that were allowed by negligence. And to the same effect are the the jury seem to be reasonable under the following authorities: Railroad Company v. (irr'umstanees. Gladmon, 15 Wall. (U. S.) 401, 21 L. Ed. 114; Finding no error in the record which would Wharton, Negligence, $ 423, and authorities justify a reversal of the cause, the judgthere cited in note 1; Indianapolis & St.

ment of the court below is affirmed. Louis Railroad Co. v. IIorst, 93 U. S. 291, 23 L. Ed. 898.

BURWELL, J., who presided in the court In St. Louis & S. F. Ry. Co. v. Weaver below, not sitting. All the other Justices (Kan.) 11 Pac. 408-414, 57 Am. Rep. 176, concurring, except BURFORD, C, J., who the Supreme Court of Kansas holds that the dissents.

*

*

(17 Okl. 28)

WILLIAMS v. UNITED STATES. (Supreme Court of Oklahoma. June 11, 1906.

Rehearing Denied Sept. 7. 1906.) 1. INTERNAL REVENUE-CRIMINAL PROSECUTI N-INDICTMENT.

In charging an offense under section 3318 of the Revised Statutes of the United States (U. S. ('omp. St. 1901, p. 216+!, prescribing a penalty for failure on the part of rectifiers and wholesale liquor dealers to perform certain duties therein specified, it is not necessary to allege in the indictment that the defendant is both a rectifier and a wholesale liquor dealer. 2. SAME.

Nor is it necessary, in such a prosecution, to charge or prove to whom the spirits were sold and the place where sent. 3. INDICTEXT-ELECTION-PROCEDURE.

Under an indictment containing two counts, both based upon the same act and charging the same offense, but in different language, the prosecution may, at the time the case goes to the jury, elect to stand upon either count.

[Ed. Note. For cases in point, see Cent. Dig. vol. 27, Indictment and Information, $$ 138, 439.] 4. CRIMINAL LAW - APPEAL- ORAL INSTRUCTION--Not REVIEWED WHEX.

An error of the trial court in giving an instruction to the jury orally in a criminal casa, and not reducing such instruction to writing before giving it to the jury will not be reviewed on appeal unless presented to the trial court for review by motion for a new trial.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, $ 1948; vol. 15, Criminal Law. $S 2083, 2767.1 5. SAME-HARMLESS ERROR.

The court having given an instruction to the jury orally, the defendant and counsel being present and not objecting, and reserving no exception, and the instruction having been immediately reduced to writing and appearing in the record, with the other instructions, and, no error appearing in them, the case is one in which the substantial rights of the defendant were not affected, and the case will not be reversed for such error.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 15, Criminal Law, $ 3163.]

(Syllabus by the Court.)

any spirits, and before the same are removed from his premises, enter in like manner in the suid book the day when and the name and place of business of the person or firm to whom such spirits are to be sent, the quantity and kind or quantity of such spirits, the number of gallons or fractions of a gallon at proof, and if, in the original packages in which they were received, the name of the distiller and the serial number of the package. * * * And whenever any rectifier or wholesale liquor dealer refuses or neglects to provide such book, or to make entries therein as aforesaid, *

or makes any false entry therein,

* * *

or whenever such book is not preserved or is not produced by any rectifier or wholesale liquor dealer, as herein before directed, he shall pay a penalty of one hundred dollars, and shall (on conviction) be fined not less than one hundred dollars nor more than five thousand dollars, and imprisoned not less than three months nor more than three years." The charging part of the indictment contains this language: "That on the 1st day of July in the year of our Lord 1903, from thence and on the 31st day of December, 1903, at Ralston, in said county of Pawnee, in said territory of Oklahoma, Matt Williams, who was a wholesale liquor dealer, and, as such, was required to prepare a book prepared and kept in a form theretofore prescribed by the Commissioner of the Internal Revenue of the United States, of the prescribing of which form of which book by the said Commissioner the said Matt Williams then, and before that time, had notice, and that, during the period afore. said, and on the 6th day of November, 1903, the said Jatt Williams, as such wholesale liquor dealer as aforesaid, did then and there send out of his stock and possession certain distilled spirits, to wit, two casks of distilled spirits, and did willfully and unlawfully refuse and neglect to make on said book any entry or entries whatsoever concerning said casks of spirits respectively, at said time of sending same out of his stock and possession, and before the same were removed respectively from his possession. * * "

The first assignment of error in counsel's brief is that, before one can be convicted of a violation of the statute, it must be alleged and shown that he is both a rectifier and wholesale liquor dealer; that, unless he is such, it would become necessary to construe the word "and" to mean "or," which cannot be done in the construction of a penal statute, citing U. S. V. Ten Cases of Shawls, Fed. Cas. No. 16,418; Rice v. U. S., 53 Fed. 910, 4 0. C. A. 104, and several other cases. To show that counsel are in error in their construction in this respect, it is not necessary to do more than refer to the following authorities: U. S. v. Fisk, 3 Wall. (U. S.) 415, 18 L. Ed. 213. In this case the court say: "In the construction of a statute, it is the duty of the court to ascertain the

Error from District Court, Pawnee County ; before Justice Bayard T. IIainer.

Matt Williams was convicted of violation of the internal revenue law, and brings error. Affirmed.

E. M. Clark, Buckner & Buckner, John Leahy, and Frank D. Johnson, for plaintiff in error. Horace Speed, U. S. Atty., for defendant in error.

PANCOAST, J. This action was commenced in the district court of Pawnee county, the indictment charging the defendant, who was a wholesale liquor dealer, with violating section 3313 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 2161] which provides: "Every rectifier and wholesale liquor dealer shall provide a book, to be prepared and kept in such form as niay be prescribed by the Commissioner of Internal Revenue. *

And every such rectifier and wholesale dealer shall, at the time of sending out of his stock or possession

order to do this, courts are often compelled

clear intention of the Legislature, and, in keep the books provided for, and make the

entries therein at the times specified, and a to consider 'or' as meaning and,' and again, failure of either a rectifier or a wholesale and' as meaning for.'” And in this case, liquor dealer to perform his duty in that which is one exactly parallel, the court coll

l'errel would be a violation of the statute. strued the woril "anal' to meul "or." In The second assignment is that the indiet2 Cyc. p. 286, it is stated that "and" is a ment fails to charge to whom the spirits particle which expresses an aullition, and were sold, and the place where sent. This which is frequently construed as meaning is entirely unnecessary in pleading a viola"or,' although it should never be so construed tion of such statute. Indecil, it may be imunless the context favors the conversion; ' possible for the prosecution to (h:urge or and, also, sometimes is construed in the sense prove the person to whom spirits are solil or of "as well as." Numerous oitations ille the plante where sent, and rules of pleading there given in support of the text. Also, in never require that to be pleaded which is the im. & ling. Ene. Lil (21 4.) Vol. 2, p. impossible. The person to whom spirits are 337, the doctrine is laid down that per:11 stat- solil :ind the place where sent are peculiarly utes are to be construed in favor of the within the knowledge of the defendant, and, accused, and that the word "or" will not, in in cases of want on violations of this statute, gener:11, be construed "and," or viip persa, the requirement that such an allegation be where the effect would be to y millalte the made and sustained would result in a failure offense, or would be to the disavantage of to prosecute persons who were guilty of viothe accused. Numerous authorities ire there lations of low. Vor is it necessary to allege (ited, many of them (riminal. But counsel or prove the amount of wine gallons in the overlook some of the language of the act in casks chargeil to have been removed, for question. While the statute provides that the same reason above expressed. These every rertifier and wholesale liquor dealer 1:rits are within the knowledge of the leshall provide it look, and shall make certain fondant, and may be, and in many instances entries therein at certain times, it is further are, unknown to the prosecution. It is claimprovided that “whenever any rertifior O! ed that, inasmuch as the defendant was wholesale liquor dealer retuses or neglerts to both a retailer and a wholesale dealer, it provide such book or make sure entries there- Wa?s 10ressiry to charge and prove the numin as aforesaid

or makes any false her of wine gallons in each (ask, but we (ntries therein,

or whenever said think it is immaterial as to whether the debook is not preserved or is not produced by fendant was a retail dealer or not. IIe was Uly letisier or wholesale liquor dealer, as ch:rgell as il wholesale dealer, and it is only hereinbefore (lireyoted, he shall pay a penalty," is such that the proscrution was commenced etc. It is evident from a realing of this anal proceeded with grainst him. part of the statute, where the word "ilnil" It is also insisteil that there was error in is not used but the word "or" is used, that not requiring the government to election it is intended that a violation of the provi- which of the two counts in the indictment sions of this statute by either a wholesale it would proceed, and that, under our proliquor dealer or a rectifier shall make such cedure, but one crime can be charged in one person liable under the statute. The first indiment and triell at one time. The inpart of the statute in which the word "and" (lictment in this case contains two counts, is used speaks of two different classes of both based, however, upon the silme act, persons whose duty it is to provide proper charging the same offense, but charging it books and keep proper records. The last in different language. When the case went part of the statute provides that, if either to the jury, the government elerted to stand of such persons violates his luties in such upon the first count, and we can see 10 respect he shall become liable to the penalty error in this procedure. It is a rule of therein provideil, so that it is not necessary in practice well settleil that the same offense this case for this court, nor Wis it neces- may be alleged in different language in sepsary for the court below, to convert the woril arate counts in the same indictment, and in "and" into "or," in the first portion of the many instances it is necessary to follow statute, in order to hold the defendant in such practice. In the case at bar, the only 1 his case liable under this statute. To have difference between the two counts in the inused the word "or" in the beginning of the dictment is that one charges à failure to statute in the place of "and" would have provide the book required by the department, made the sentence ungrammatical, and to and the other a failure to make the proper have used the word "and" in the place of entries in the book provided by the depart“or” in the latter part of the statute would ment. The act, however, was charged to have made the language there in that re- have been committed upon the same date spect ungrammatical. To apply the rule in in each count. the case of United States v. Fisk, supra, for Many questions are raised upon the inthe purpose of ascertaining the clear inten

troduction of evidence, and a demurrer was tion of the Legislature, there is no room for filed to the evidence and overruled. We doubt that the Legislature meant that both have examined the entire record as to the rectifiers and wholesale liquor dealers should questions raised upon the evidence and fail

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