Bowes v. State , 8 Okla. Crim. 277 ( 1912 )

First. In their brief counsel for appellant contend that, if the facts alleged in the information against appellant constitute an offense, it is a felony of which the county court of Custer county did not have jurisdiction. With this contention we cannot agree.

Section 2195, Comp. Laws 1909, is as follows:

"Every person who willfully prevents or dissuades any person who has been duly summoned or subpoenaed as a witness from attending pursuant to the command of the summons or subpoena is guilty of a felony."

From this it is seen that, in order to make the acts charged in the information a felony, it is necessary that the witness who was so prevented or dissuaded from attending court must have been duly summoned or subpoenaed as a witness at the time the acts complained of were committed. At first sight there is an apparent obscurity in the information as to when the witness was subpoenaed; but upon a careful reading of the entire information we think that it sufficiently appears that the witness was not served with a subpoena until after the acts charged were alleged to have been committed. There can be no question but that the acts charged in the information constitute an offense; and where a doubt exists as to whether or not the information charges a felony or misdemeanor, the defendant should be given the benefit of the doubt, and the information should be held good for a misdemeanor.

Section 2213, Comp. Laws 1909, is as follows:

"Section 2213. Suppressing Evidence. — Every person who maliciously practices any deceit or fraud, or uses any threat, menace or violence, with intent to prevent any party to an action or proceeding from obtaining or producing therein any book, paper, or other matter or thing which might be evidence, or from procuring the attendance or testimony of any witness therein, or with intent to prevent any person having in his possession any book, paper or other matter or thing which might be evidence in such suit or proceeding, or prevent any person being cognizant of any fact material thereto from producing or disclosing the same, is guilty of a misdemeanor."

It is true the information is not a model, yet we think it sufficiently informed the appellant of the fact that he was charged with having maliciously attempted to prevent the state from procuring the attendance of P.S. Brooks as a witness against appellant in a case then pending in the county court of Custer county, wherein appellant was charged with a violation of the prohibitory liquor law.

Section 2027, Comp. Laws 1909, is as follows:

"The rule of common law that penal statutes are to be strictly construed, has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice."

In construing section 2213, we must therefore disregard the common-law rule that penal statutes are to be strictly construed, and give section 2213 such a construction as will enable it to effect the objects for which it was enacted, and to promote justice. Under this rule of construction, we think that the acts charged in the information bring the offense within section 2213.

Section 6703, Comp. Laws 1909, is as follows:

"Words used in a statute to define a public offense need not be strictly pursued in the indictment; but other words conveying the same meaning may be used."

Paragraph 6 of section 6704, Comp. Laws 1909, with reference to indictments, is as follows:

"6. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended."

Applying these statutory provisions to the information, we think that a person of common understanding would know from reading this information that is was intended to charge that appellant maliciously — that is, with intent to injure the state — hired, induced, and employed the said P.S. Brooks, by giving him a certain sum of money and paying his expenses, to leave the jurisdiction of the court, and did thereby hinder and prevent the said P.S. Brooks from appearing before said court and giving his testimony in behalf of the state in a prosecution then pending against appellant in the county court of Custer county, as described in the information. We think this substantially charged the offense under section 2213.

Second. The next contention of counsel for appellant is that under the verdict rendered by the jury only a civil judgment for money could be rendered against appellant, and that the court erred in rendering a judgment that the defendant be imprisoned for nonpayment of the fine. There is no merit in this contention, and the court did not err in the judgment rendered, providing for the imprisonment of appellant until the fine was paid. See Exparte Bowes, ante, 127 P. 20.

Third. If human testimony is worth anything, the evidence in this case conclusively establishes the guilt of appellant of the offense charged. If every man who endeavors to induce witnesses to evade the service of process or disobey process which has been served were vigorously prosecuted and convicted, the administration of justice in Oklahoma would be much more certain and expeditious.

We find no error in the record prejudicial to appellant. We think, however, that the trial court erred in not permitting the state to prove all that was said and done by J.A. Winters, who was evidently acting in connection with appellant in the commission of this crime. Under the law he is just as guilty as appellant. Section 2045, Comp. Laws 1909, is as follows:

"All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals."

Any statements he may have made with reference to this matter during the continuance of the conspiracy between himself and the appellant to commit the crime charged, either to the state's witness P.S. Brooks or any other person, were competent evidence against the appellant, although the appellant might not have been present and heard the conversation. See James Holmes v. State,6 Okla. Crim. 541, 117 P. 651.

The judgment of the lower court is in all things affirmed.

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