(Syllabus.)

Intoxicating Liquors — Prohibition Provision of Constitution Self-Executing — Statute Denouncing Criminal Conspiracies Held not to Apply to Violations of Prohibition Provisions of Constitution or Prohibition Enforcement Act. The prohibition provision of the Constitution (article 1, § 7) is self-executing, and declares that the unlawful sale of intoxicating liquor shall be punished by a fine of not less than $50 and imprisonment for not less than 30 days. An act of the Legislature (chapter 260, S.L. 1915, now Comp. St. 1921, § 1652), making it a felony "if two or more persons conspire to commit any offense against the state of Oklahoma, or to defraud the state of Oklahoma in any manner or for any purpose," provides either "a penalty of not more than ten thousand dollars, or to imprisonment for not more than two years or to both fine and imprisonment," but does not prescribe a minimum punishment. Held, that the constitutional provision is all embracing in its terms; that, while the Legislature may fix the maximum punishment, it cannot change the minimum punishment which the Constitution has fixed, and for this reason the offense created by the statute does not apply to violations of the constitutional provision or provisions of the Prohibition Enforcement Act.

Appeal from District Court, Tillman County; Frank Mathews, Judge.

S.G. Baldwin and Leonard Shaffer were convicted of

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conspiracy to violate the prohibitory liquor law, and they appeal. Reversed and remanded, with direction to dismiss.

T.C. Greer and W.H. Hussey, for plaintiffs in error.

Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

DOYLE, P.J. This was an information in the district court of Tillman county, against S.G. Baldwin and Leonard Shaffer, in which the defendants were charged with conspiracy to violate provisions of the prohibitory liquor law. The defendants were tried jointly before a jury which returned a verdict finding them guilty as charged in the information and leaving the punishment to be fixed by the court. Motion for new trial was duly filed and overruled, and the court pronounced judgment on the 15th day of January, 1926, and sentenced the defendant Leonard Shaffer to pay a fine of $100 and imprisonment in the county jail for 30 days. The defendant S.G. Baldwin was sentenced to imprisonment in the penitentiary for a term of 2 years.

The information, in substance, charges that in Tillman county, on or about the 1st day of November, 1925, the defendants did unlawfully, willfully, corruptly combine, confederate, conspire, and agree together and with each other and with divers other persons to informant unknown to engage in the business of selling spirituous, vinous, fermented, malt, and intoxicating liquors, and further alleges overt acts in furtherance of said conspiracy.

This is a companion case to that of Taylor v. State, 38 Okla. Cr. 350, 261 P. 978. The record in this case is the same as the record in the Taylor Case so far as the jurisdiction of the trial court is concerned. See, also, Thomas et al. v. State, 38 Okla. Cr. 379, 262 P. 503.

Upon the authority of the cases above cited, the judgment

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appealed from is reversed, and the cause remanded, with direction to dismiss.

EDWARDS and DAVENPORT, JJ., concur.