Error from District Court, Kay County; before Justice Bayard T. Hainer.

Action by Frank Hatchell against Arnold Hebeisen. Judgment for plaintiff, and defendant brings error. Affirmed.

C. W. Ransom, for plaintiff in error. Cline & Duvall and Dale & Bierer, for defendant in error.

PANCOAST, J. The plaintiff in error and the defendant in error were contestants before the Department of the Interior for the northeast of section 26, township 28 N., range 1 E., in Kay county, Okl.; each claiming the tract of land under the homestead laws. The defendant in error was the successful contestant, and was awarded the land. The tract was involved in the contest for a number of years, during which time each occupied a portion thereof.

This action was brought in the district court of Kay county by the defendant in error against the plaintiff in error, under section 589 of Wilson's Rev. & Ann. St. 1903, to recover the possession and for the sum of $920 for the use and occupation of the land by the plaintiff in error. For answer, the defendant below filed a general denial. erwards, by leave of court, the defendant filed his cross-petition, setting up, among other things, the fact that the parties had been applicants before the Department of the Interior for the land, and that the same had been awarded to the plaintiff below, but alleging that there was error in the decision of the Secretary of the Interior and a misapplication of law, and attempting to set up sufficient facts to enable him to hold the plaintiff as trustee for his benefit, and praying that the plaintiff be adjudged to hold the legal title in trust for the defendant, and that he be required to convey the same to the defendant. To this cross-petition, the plaintiff filed a demurrer, on the ground that the said cross-petition did not contain a sufficient statement of facts to constitute a cause of action against the plaintiff and in favor of the defendant, or to entitle the defendant to any relief thereunder. This demurrer came on to be heard on the 7th day of September, 1904, at a regular session of the district court of Kay county, and on that date the demurrer was sustained, and judgment rendered thereon. Thereupon the defendant electing to stand upon his cross-petition, a final judgment was rendered in the case: "That the defendant take nothing under said cross-petition, as contained in paragraphs 1, 2, 3, 4, and 5 of the defendant's answer and cross-petition, and that the cross-petition herein be dismissed; to all of which the defendant excepted."

The appeal in this case was not filed in this court until October 6, 1905, more than one year after the rendition of judgment upon the demurrer to the cross-petition. A motion has been made by the defendant in

error to dismiss the petition in error in this case for the reason that the action was not filed in this court until more than one year after the judgment was rendered on the demurrer to the cross-petition. This motion was ordered by the court to be taken with the case, opinion to be written thereon. The judgment of the district court dismissing the cross-petition at the time of sustaining the demurrer was a final judgment, and, under section 4748 of Wilson's Rev. & Ann. St. 1903, to enable this court to review the judgment of the district court, an appeal therefrom should have been taken and an action commenced in this court within one year from the date of the rendition of such judgment. More than one year having elapsed before the appeal was perfected in this case, such judgment cannot be reviewed by this court. The decision of this proposition decides the principal question in this case. The only other questions are that it is claimed that the court below gave judgment for six years' back rent, while the Code fixes the limitation at three years, and that during four years of that period this plaintiff had a homestead entry on this tract, and, as such entryman, he had an unquestionable right to the possession under the homestead laws, and it was error to permit a recovery of the rents for those years. The plaintiff below asked judgment for $920. The court rendered judgment for $500. Upon the question of damages, evidence was allowed to be introduced covering the entire period during which the defendant occupied the premises, there being some variation in the testimony of the several witnesses as to the value of the use and occupancy of the land. No special findings were asked for, and none were made. The court found generally in favor of the plaintiff. The evidence abundantly supports the findings. Nowhere is it pointed out in the brief of plaintiff in error, nor can we determine from an examination of the record, that the court found that the plaintiff was entitled to recover for any special period of time, much less for a period of six years. The plaintiff in error in this case seems to content himself in his brief by a mere statement of the proposition that the court gave judgment for six years' back rent, and neither by argument by argument or otherwise attempts to show to this court any reason for such statement. We cannot understand upon what principles it is claimed, when the homestead entry of the plaintiff in error upon the tract is found to be wrongful, that during the period of the homestead entry he cannot be held for damages for the use and occupancy therefor; nor is any argument advanced upon this proposition.

Seeing no error in the judgment of the court below which can be reviewed by this court, the judgment is affirmed.

HAINER, J.. who tried the case below, not sitting. All the other Justices concurring.

(17 Okl. 515)

OKLAHOMA CITY v. REED. (Supreme Court of Oklahoma. Sept. 7. 1906.) MUNICIPAL CORPORATIONS DEFECTIVE

STREETS-ACTION FOR INJURIES-PRESUMP

TIONS.

In an action against a municipal corporation for personal injuries. there is no presumption that the plaintiff or defendant is guilty of negligence, and in order to entitle the plaintiff to recover it is sufficient for him to show that the defendant was guilty of negligence, with nothing in the circumstances establishing contributory negligence on his part; and when such facts are proven, it devolves upon the defendant to prove affirmatively that the plaintiff was guilty of contributory negligence.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1725.]

Burford, C. J.. dissenting. (Syllabus by the Court.)

Error from District Court, Oklahoma County; before Justice B. F. Burwell.

De

Action by George Reed against the city of Oklahoma City. Judgment for plaintiff. fendant brings error. Affirmed.

G. A. Paul, for plaintiff in error.

HAINER. J. This was an action brought by George Reed against the city of Oklahoma City, to recover damages for personal, injuries alleged to have been sustained by him on account of the negligence of the city in maintaining a dangerous obstruction on the sidewalk of one of its public streets. The cause was tried to a jury, and the plaintiff recovered a verdict for $500, and judgment was entered in accordance therewith. From this judgment the city appeals.

It is assigned as error that the plaintiff's amended petition fails to state facts sufficient to constitute a cause of action, and therefore the court erred in not sustaining the defendant's objection to the introduction of evidence. Plaintiff in error contends that the amended petition did not sufliciently aver that the plaintiff was, at the time of the accident, in the exercise of ordinary care, and free from fault or negligence on his part. And it is further contended that it is incumbent upon the plaintiff to allege and prove that he was not guilty of contributory negligence. And in support of this contention the plaintiff in error has cited the case of Pittman v. City of El Reno, 4 Okl. 638, 46 Pac. 495, where the court laid down the rule that in a case where a municipal corporation is charged with negligence, "it was the duty of the plaintiff to establish in his case in chief the fact that he was not guilty of contributing in any manner to the injury received." We do not think the amended petition is subject to this objection.

The material averments of the amended petition were that the city had maintained, for a period of more than one year, a water hydrant about 22 inches high, and extending in the sidewalk about 40 inches from the outer edge thereof. That on the night of December 24, 1902, while the plaintiff was

exercising due and proper care, and without fault on his part, he stumbled on and over said hydrant, and then and there fell on said sidewalk, whereby he sustained great and permanent injuries, having his right arm broken, etc. It will thus be seen that the plaintiff's amended petition not only charges the municipality with negligence, but also alleges that at the time the plaintiff received the injuries he was exercising due and proper care, and that such injuries occurred without fault on his part. It is true. as stated by counsel for plaintiff in error, that a municipal corporation has the power to construct and maintain fire hydrants for the use and protection of the city. But while it has the right to construct and maintain such hydrants, they should not be placed in such a position as to obstruct and be an object highly dangerous to pedestrians who are traveling upon the sidewalks in accordance with the usual modes of travel. A municipal corporation is bound by law to use ordinary care to keep its sidewalks, as well as its streets, in reasonably safe condition for public use, in the ordinary modes of travel, by night as well as by day. And if it fails to do so, it is liable for injuries sustained by reason of such negligence. Town of Norman v. Teel, 12 Okl. 69, 69 Pac. 791.

The law is well settled that a person trav eling upon a sidewalk of a municipal corporation, which is in constant use by the public. has a right, when using the same with reasonable care, to presume and act upon the presumption that it is reasonably safe for ordinary travel, and free from dangerous obstructions or other defects. Dillon, in his excellent treatise on Municipal Corporations. (2d Ed.) vol. 2, § 1024, states this doctrine as follows: "Where streets have been rendered unsafe by the direct act, order, or authority of the municipal corporation (not acting through independent contractors, the effect of which will be considered presently), no question has been made, or can reasonably exist, as to the liability of the corporation for injuries thus produced, where the person suffering them is without contributory fault. or was using due care." The adjudicated cases are in conflict on the question whether the burden of proving contributory negligence, or its absence, is on the plaintiff or defendant. In Indiana and some other jurisdiction it has been held that the plaintiff cannot recover unless he alleges and proves that the injury occurred without negligence on his part; in other words, that he was not guilty of contributory negligence. And this was the rule adopted by our court in the case of Pittman v. City of El Reno, supra, but this decision, as we understand it. was placed upon that ground for the reason that the Indiana Code was then in force in Oklahoma, and that the decisions of the courts of that estate were binding on our court while that statute remained in force

here. But, on the other hand, the great weight of the American authorities, and the text-writers, as well as of the English authorities, supports the doctrine that it devolves on the defendant to plead and prove contributory negligence; while all the courts seem to hold the doctrine that, if the plaintiff's evidence establishes that he was guilty of contributory negligence on his part, it precludes his recovery, no matter where the burden of proof rests.

In our opinion, the true and sound rule, and one which is in consonance with justice, is that there is no presumption that the plaintiff or defendant is guilty of negligence; and that in order to entitle the plaintiff to recover, it is suflicient for him to show that the defendant was guilty of negligence, with nothing in the circumstances establishing contributory negligence on his part. And when such facts are proven, it devolves upon the defendant to prove affirmatively that the plaintiff was guilty of contributory negligence. In Am. & E. Enc. Law (2d Ed.) vol. 7, p. 455, this doctrine is clearly stated as follows: "Perhaps the true doctrine is that there is no presumption of either negligence or care which is applicable as a general rule in all cases, but that the question of the burden of proof should be determined on the facts of each case according to whether they show a duty of care on the plaintiff or the defendant. On principle, it would seem sufficient to entitle the plaintiff to recover, for him to show a negligent injury by the defendant, with nothing in the circumstances establishing contributory negligence on his part; and this done, it would devolve upon the defendant to show the plaintiff's contributory negligence affirmatively."

In Lincoln v. Walker, 18 Neb. 244, 20 N. W. 113, 5 Am. & Eng. Corp. Cas. 611, the Supreme Court of Nebraska, in passing upon this question, said: "In view of the conflict in the authorities, we are compelled to adopt such rule as may seem most consonant with justice. This being so, there certainly is no presumption that the plaintiff was negligent. We therefore hold the rule to be, that if the plaintiff can prove his case without showing contributory negligence, it is a matter of defense to be proved by the defendant." Hough v. Railway Co., 100 U. S. 213–225, 25 L. Ed. 612, the Supreme Court of the United States has laid down the rule that in a case of this kind the burden of proof is upon the defendant to show contributory negligence. And to the same effect are the following authorities: Railroad Company v. Gladmon, 15 Wall. (U. S.) 401, 21 L. Ed. 114; Wharton, Negligence, § 423, and authorities there cited in note 1; Indianapolis & St. Louis Railroad Co. v. Horst, 93 U. S. 291, 23 L. Ed. 898.

In St. Louis & S. F. Ry. Co. v. Weaver (Kan.) 11 Pac. 408-414, 57 Am. Rep. 176, the Supreme Court of Kansas holds that the

burden of proving contributory negligence on the part of the plaintiff rests upon the defendant. In the course of the opinion Mr. Justice Valentine, speaking for the court, says: "It is claimed, however, that the burden of proof rests upon the plaintiff to show that he was not guilty of contributory negligence, and not upon the defendant to show that he was. The rule, however, in this state, is otherwise. Kansas Pac. Ry. Co. v. Pointer, 14 Kan. 38, 50; Kansas City, I. & S. R. Co. v. Phillibert, 25 Kan. 583. See, also, Beach, Neg. 430, 157. The law presumes that every person performs his duty, and this presumption continues until it is shown affirmatively that he does not, or has

Ilence, wherever there is no evidence upon the subject, or where the evidence is equally balanced, this presumption in favor of the person in question requires that the findings of the court and jury should be that such person has performed his duty, and is not guilty of any culpable negligence, contributory or otherwise. IIence, while it may be said, in a general sense, that the burden of proving his case devolves upon the plaintiff, yet, if he has shown that the defendant was guilty of the negligence causing the injury complained of, and the evidence tending to show that he has performed his duty is at least equal to that which tends to show otherwise, he has made out his case. This is virtually throwing the burden of proof to show that the plaintiff has been guilty of culpable contributory negligence upon the defendant, and this has been the uniform holding of this court." The doctrine announced in Pittman v. City of El Reno, 4 Okl. 638, 46 Pac. 495, so far as it is in conflict with the rule herein announced, is overruled. It follows that the amended petition stated facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant, and therefore the court properly overruled the objection of the defendant to the introduction of evidence in support thereof. It seems to us that the evidence in this case clearly establishes that the plaintiff was in the exercise of ordinary care and caution at the time he received the injury, and that it was negligence on the part of the city in maintaining an obstruction that endangered the life and limb of the public who were traveling upon the sidewalk in question, and that the jury were fully warranted in finding the issues in favor of the plaintiff. And, moreover, the damages that were allowed by the jury seem to be reasonable under the circumstances.

Finding no error in the record which would justify a reversal of the cause, the judgment of the court below is affirmed.

BURWELL, J., who presided in the court below, not sitting. All the other Justices concurring, except BURFORD, C. J., who dissents.

(17 Okl. 28)

WILLIAMS v. UNITED STATES. (Supreme Court of Oklahoma. June 11, 1906. Rehearing Denied Sept. 7. 1906.)

1. INTERNAL REVENUE-CRIMINAL PROSECUT1N-INDICTMENT.

In charging an offense under section 3318 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 21641, 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. INDICTMENT-ELECTION-PROCFDure.

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, §§ 438, 439.]

4. CRIMINAL LAW APPEAL-ORAL INSTRUCTION-NOT REVIEWED WHEN.

An error of the trial court in giving an instruction to the jury orally in a criminal case, 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. §§ 2683, 2767.]

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.)

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

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 3318 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 2164] which provides: "Every rectifier and wholesale liquor dealer shall provide a book, to be prepared and kept in such form as may 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

*

or

any spirits, and before the same are removed from his premises, enter in like manuer in the said 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, 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 aforesaid, and on the 6th day of November, 1903, the said Matt 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. 16,448; Rice v. U. S., 53 Fed. 910, 4 C. 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.) 445, 18 L. Ed. 243. In this case the court say: "In the construction of a statute, it is the duty of the court to ascertain the

2 Cyc. p. 286, it is stated that "and" is a particle which expresses an addition, and which is frequently construed as meaning "or," although it should never be so construed unless the context favors the conversion; and, also, sometimes is construed in the sense of "as well as." Numerous citations are there given in support of the text. Also, in the Am. & Eng. Ene. Law (2d Ed.) vol. 2, p. 337, the doctrine is laid down that penal statutes are to be construed in favor of the accused, and that the word "or" will not, in general, be construed "and," or vice versa, where the effect would be to aggravate the offense, or would be to the disadvantage of the accused. Numerous authorities are there cited, many of them criminal. But counsel overlook some of the language of the act in question. While the statute provides that every rectifier and wholesale liquor dealer shall provide a book, and shall make certain entries therein at certain times, it is further provided that "whenever any rectifier or wholesale liquor dealer refuses or neglects to provide such book or make such entries therein as aforesaid ** or makes any false entries therein, or whenever said book is not preserved or is not produced by any rectifier or wholesale liquor dealer, as hereinbefore directed, he shall pay a penalty," etc. It is evident from a reading of this part of the statute, where the word "and" is net used but the word "or" is used, that it is intended that a violation of the provisions of this statute by either a wholesale liquor dealer or a rectifier shall make such person liable under the statute. The first part of the statute in which the word "and" is used speaks of two different classes of persons whose duty it is to provide proper books and keep proper records. The last part of the statute provides that, if either of such persons violates his duties in such respect he shall become liable to the penalty therein provided, so that it is not necessary in this case for this court, nor was it necessary for the court below, to convert the word "and" into "or," in the first portion of the statute, in order to hold the defendant in this case liable under this statute. To have used the word "or" in the beginning of the statute in the place of "and" would have made the sentence ungrammatical, and to have used the word "and" in the place of "or" in the latter part of the statute would have made the language there in that respect ungrammatical. To apply the rule in the case of United States v. Fisk, supra, for the purpose of ascertaining the clear intention of the Legislature, there is no room for doubt that the Legislature meant that both rectifiers and wholesale liquor dealers should

keep the books provided for, and make the entries therein at the times specified, and a failure of either a rectifier or a wholesale liquor dealer to perform his duty in that regard would be a violation of the statute.

The second assignment is that the indictment fails to charge to whom the spirits were sold, and the place where sent. This is entirely unnecessary in pleading a violation of such statute. Indeed, it may be impossible for the prosecution to charge or prove the person to whom spirits are sold or the place where sent, and rules of pleading never require that to be pleaded which is impossible. The person to whom spirits are sold and the place where sent are peculiarly within the knowledge of the defendant, and, in cases of want on violations of this statute, the requirement that such an allegation be made and sustained would result in a failure to prosecute persons who were guilty of violations of law. Nor is it necessary to allege or prove the amount of wine gallons in the casks charged to have been removed, for the same reason above expressed. These facts are within the knowledge of the defendant, and may be, and in many instances are, unknown to the prosecution.

It is claim

ed that, inasmuch as the defendant was both a retailer and a wholesale dealer, it was necessary to charge and prove the number of wine gallons in each cask, but we think it is immaterial as to whether the defendant was a retail dealer or not. He was charged as a wholesale dealer, and it is only as such that the prosecution was commenced and proceeded with against him.

It is also insisted that there was error in not requiring the government to elect upon which of the two counts in the indictment it would proceed, and that, under our procedure, but one crime can be charged in one indictment and tried at one time. The indictment in this case contains two counts, both based, however, upon the same act, charging the same offense, but charging it in different language. When the case went to the jury, the government elected to stand upon the first count, and we can see no error in this procedure. It is a rule of practice well settled that the same offense may be alleged in different language in separate counts in the same indictment, and in many instances it is necessary to follow such practice. In the case at bar, the only difference between the two counts in the indictment is that one charges a failure to provide the book required by the department, and the other a failure to make the proper entries in the book provided by the department. The act, however, was charged to have been committed upon the same date in each count.

Many questions are raised upon the introduction of evidence, and a demurrer was filed to the evidence and overruled. have examined the entire record as to the questions raised upon the evidence and fail