On January 15th, 1908, a trial was had, which resulted in a verdict of guilty. On said day a motion for a new trial was filed.

On January 17th, 1909, a motion in arrest of judgment was filed, which motions were by the court overruled, and exceptions allowed.

Whereupon the court sentenced defendant to pay a fine of $250.00, and to be confined six months in the County jail.

On April 29th, 1908, defendant filed his petition in error and case made in the Supreme Court.

Upon the organization of the Criminal Court of Appeals, the Supreme Court transferred as provided by law, said cause to this court. At the May term, 1909, of this court, said cause was submitted.

Rennie, Hocker & More,

For Plaintiff in Error Fred S. Caldwell, For the State.

Opinion of the court by DOYLE, J.: (After stating the case) The petition sets forth numerous assignments of error, which are argued in the brief, however, it is unnecessary to notice but the one, that:

"The court erred in overruling defendant's demurrer to the information, which demurrer was properly presented prior to the plea herein, and exception properly saved thereto by proper motion in arrest of judgment was by the court overruled to which the defendant duly excepted.

A.

B.

Because said information was not verified.

Because said information fails to state that the sale complained of was an unlawful sale.

C. Because said information charges more than one offense, charging a sale to one Zeb White, and also sales to other persons unknown to the County Attorney. D. Because said information concludes "against the form of the statutes in such cases made and provided,' and whereas there is no statute of Oklahoma prohibiting such sales.

E.

Because there are no names of witnesses endorsed on said information."

Under this assignment the question presented is identical with that in tne case of Salter v. The State, 102, Pac. p. wherein this court held that a verification upon information and belief is not in law or in fact a verification on oath or affirmation and in the case of Degraff v. The State, deciced at this term, (not yet reported) the question has been fully determined.

See also Ex parte Flowers, 101 Pac., 860:

The third paragraph of the Syllabus the Flowers case is as follows:

"Under the laws of this state no particular form of affidavit charging the commission of a misdemeanor is prescribed. Such affidavit sufficiently complies with the requirements of the statutes when it substantially states an offense defined by the statutes, and such affidavit is sufficient to base an information upon, provided that the information predicated on such affidavit is positively sworn to by the county attorney."

Counsel for the State in his brief contends that:

"An information of this sort filed by a prosecuting attorney of this state requires no verification other than the official oath of the public prosecutor, and section 1960 General Statutes of Oklahoma, 1908, the same being from page 189 of the 1895 session Laws of the Territory of Oklahoma, in so far as it undertakes to require any other or different verification on the part of couuty attorneys, is repugnant to Section 26, Article 11 of the Constitution of the State of Oklahoma. If the Constitution in providing that crimes may be prosecuted by information, used the term 'information' in its common law sense, and an 'information' at common law required no verification other than the official oath of the public prosecutor, by what authority can the Legislature change the common-law sense in which the term 'information' has been used in the Constitution by requiring informations to be verified in a manner entirely unknown to the common law?"

In the opinion rendered in the case of Salter v. The State supra, this court said:

"This contention is obviously without merit. .The error of the argument is so self evident as to require only a passing notice.

Counsel overlooks the fact that by the adoption of the fourth amendment of the Federal Constitution, the procedure by information lost its prerogative function or quality. It could not thereafter be the vehicle of prefering any arbitrary accusation.

(United States v. Turead, 20 Fed. p. 521)

The constitutional provision in the Bill of Rights is but a reiteration of this essential safeguard of the liberty and security of the citizen against the arbitrary action of those in authority. Such pernicious practice may suit the purpose of despotic power, but is alien to the pure atmosphere of political liberty and personal freedom.

The Constitution expressly requires a showing of cause before a warrant shall issue, and the constitutional safeguards for security and liberty cannot in this manner be abrogated or abridged. They must stand as adopted by the people."

Clearly within the cases above cited, the judgment in this case cannot be permitted to stand. As the case must be remanded for a new trial, we wish to call attention to the fact that the instruction defining "reasonable doubt" is erroneous.

See Abbot v. The Territory, 1st Okla. Criminal Reports, p.. (94 Pac. 179.)

Price v. The State, 1st Okla. Criminal Rep. p.-. (98 Pac. 447.)

For the reasons stated in Salter v. The State, and Degraff v. The State, Supra, the judgment of the County Court of McClain County, in this case, is hereby reversed and the case remanded to that court for further proceedings not inconsistent with the views expressed in this opinion.

Furman, Presidnig Judge, and Owen, Judge, Concur.

THE STATE OF OKLAHOMA, Appellee.

Hon. W. C. Jackson, Trial Judge.

(The first part of this opinion is found in the June Number of The Oklahoma Law Journal, beginning on page 532.)

Again, the indictment in this case was good because it stated that the names of the persons to whom the sale was made were unknown. This is always permissible and would be good in any kind of indictment. The subsequent Missouri cases cited by counsel for the State are all based upon an obiter dictum of the judge who wrote the opinion in the Ladd case. As they, all rest upon the same foundation, when it is shown that this foundation is unsound, we cannot consider these cases as authorities in point.

Counsel cite Cannady v. The people, 17 Ill. 158, and Rice v. The People, 38 Ill., 435. In Cannady v. The People is cited Commonwealth v. Odlin, 23 Pick. 297. The court says:

"In Massachusetts statutes there are two offenses defined, and different penalties imposed, one against common sellers, or retailers, and the other against persons guilty of a single act, without a license. Where the indictment charged the latter offence, the court held it necessary to charge the time, place, and to a person named, or that the name was unknown. Id. 379. But in an indictment against a common seller, &c., it was unnecessary to name the person.”

We are at a loss to know why this citation was made. It is directly in conflict with the decision which it claims to be founded upon. We agree fully with what the Massachusetts court says on this subject.

It is worthy of note that Cannady's case was decided by a divided court. This further weakens its force as an authority. Also in Cannady's case, the indictment alleged that the sale was made to persons whose names

were unknown. This destroys the force of the decision, because the judge who rendered it went outside of the question submitted to him for decision. In the Rice case the decision is based alone upon the Cannady case. We cannot recognize such illconsidered cases as these. Counsel cite State v. Heldt, 41 Tex. p. 220. This does not support the contention of counsel because the indictment expressly charges that the liquors were sold to persons to the grand jury unknown.

Equally unfortunate for the contention of counsel is the citation of Mansfield v. The State, 17 Tex. Ct. of App On page 470, the court said: "The other cases cited by appellant's counsel in his brief, viz., Burch vs. The Republic, 1 Tex., 608, and Alexander v. The State, 29 Texas, 495, were cases arising under statutes regulating the sale of intoxicating liquors, and cannot, we think, be held applicable to the article of the Penal Code under which this indictment was framed, which article creates and describes a very different offense, that is, pursuing any occupation, etc., taxed by law, without first obtaining a license therefor. It is not the sale of intoxicating liquors that constitutes the offence denounced by said article, but it is the act of pursuing a taxable occupation without obtaining a license therefor. We think the indictment sufficiently alleges this offense, and that the exceptions to the same were properly overruled."

As neither of these cases in any wise touch upon the question now before us, we are at loss to understand why they are cited. State v. Doyle, 15 Rhode Island, 527, is also relied upon by counsel for the State. That was not a case for selling liquors, but was a case for maintaining a nuisance. We commend this case as being a correct statement of the law upon the subject of nuisances. It would be well for the county attorneys to follow this case in such prosecutions in this State.

We give it our hearty commendation. The State v. Jordan, 39 Iowa, 387 is also cited by counsel. The charge in this case is also for maintaining a nuisance. We approve the decision in this case also, except that the in. dictment would not be good in Oklahoma, because it