text:
      Ex parte Curlee.
    No. 28.
    Opinion Filed April 27, 1908.
    (95 Pac. 414.)
    JURISDICTION — Venue—Offense Antedating Statehood. Where an indictment for the crime of embezzlement — an offense committed under the laws in force in the Indian Territory — is returned after the admission of the state into the Union, no prosecution whatever having been begun prior to the admission of the state into the Union, except the filing of a complaint with the United States Commissioner and the issuance of a warrant and the apprehension of the prisoner, said offense is cognizable in the district court of the state in the county in which the offense was committed.
    (Syllabus by the Court.)
    Application of J. W. Curlee for a writ of habeas corpus.

    Writ denied.

      On the 26th day of December, 1907, relator filed his petition with the clerk of this court praying for a writ of habeas corpus, alleging that he was unlawfully imprisoned and restrained of his liberty by George B. Noble, sheriff of Le Flore county, Okla. The writ was issued returnable on the nth day of January, A. D. 1908. Said respondent made return to said writ as follows:
    “The above defendant, J. W. Curlee, is detained by George B. Noble, as sheriff of said county, by virtue of a warrant of commitment charging him with the crime of embezzlement committed on or about the 1st day of September, 1907, which said warrant was issued by John R. Pollan, United States commissioner for the Central district of the Indian Territory, on or about the 9th day of November, A. D. 1907; and on the nth day of January, A. D. 1908, it was stipulated as a matter of record that the said relator is charged with having embezzeled from the Pioneer Telephone Company, in September, 1907, the sum of $293, at Spiro, then Indian Territory, now Le Flore county, state of Oklahoma. That relator was arrested upon said charge upon a warrant regularly issued by John R. Pollan, United States commissioner, on November 7, 1907, and upon preliminary hearing before said commissioner on the same day was held to await the action of the grand jury, and committed to jail at McAlester in default of bond.”
    Thereafter, on the 7th day of December, 1907, said relator was delivered by the United States marshal of the Eastern district of the state into the custody of the respondent, as sheriff of Le Flore county, state of Oklahoma. That on December 14, 1907, at the December term of the District court in and for Le Flore county, the grand jury returned an indictment against said relator, charging him with said offense. That since his delivery to the said George B. Noble, as sheriff, up to the present time, relator has been detained, and is in his custody on said charge.

      Day & Du Bois, for relator.

      Chas. West, Atty. Gen. and W. C. Reeves, Asst. Atty. Gen. for respondent.
   Williams, C. J.

(after stating the facts as above.) We have decided at this term of court in the case of Ex parte Buchanen, 94 Pac. 943, that an indictment for the crime of manslaughter —an offense committed in the Indian Territory prior to its admission into the Union, and returned after such time, where no prosecution whatever had been begun before such date of admission — -is cognizable in the district court of the state in the county in which the offense was committed. See, also, Ex parte Bailey, 20 Okla. 497, 94 Pac. 553; Ex parte Brown, 20 Okla. 505, 94 Pac. 556; Higgins v. Brown, 20 Okla. 355, 94 Pac. 703.

The relator is prosecuted under section 1638, Mansfield’s Digest of the Statutes of Arkansas, which were extended to and put in force in the Indian Territory by section 4 of an act of Congress approved March 1, 1895 (28 U. S. Stat. c. 145, p. 693) ; also section 33 of an act of Congress approved May 2, 1890 (26 U. S. Stat. c. 182, p. 81.)

In the case of Merchant's National Bank of Bismarck v. Braithwaite, 7 N. D. 358, 75 N. W. 246, 66 Am. St. Rep. 653, the court says:

“Considering the provisions of the enabling act in connection with the failure of Congress to vest jurisdiction over territorial judgments in the federal courts, and the fact that Congress in passing the act must have contemplated that the state Constitution would create state courts having jurisdiction similar to that possessed by the territorial courts, and that these would be the better fitted to enforce judgments throughout the different counties in the state, w'e must infer an implied assent by Congress that jurisdiction over cases not pending should vest in state courts exclusively. Otherwise we must assume that those cases were to be left without any court possessing jurisdiction over them for any purpose whatever, for it is clear that no jurisdiction over them is vested by the enabling act in the federal courts.”

In line with this decision cases, not of a federal character, not pending, involving offenses committed prior to the admission of the state into the Union, should vest in the state courts. Of course, non-pending actions of a federal character would necessarily vest in the United States courts in the state erected out of said territories just as they do in the United States courts in the other states. We had not found this case at the time the opinion was written in the case of Ex parte Buchanen, with which it is in harmony. The provisions of the Oklahoma enabling act being substantially those as contained in the enabling act for North and South Dakota, it is presumed that Congress in adopting the same for Oklahoma did it with a view of the construction that had been had thereon in North Dakota.

Under the authority of the Buchanen Case, which is supported by the case just cited from North Dakota, the writ of habeas corpus is denied.

All the Justices concur.


source: Caselaw Access Project

author: Williams, C. J.

license: Public Domain

text:
      Ex parte Wagner.
    No. 32.
    Opinion Filed April 27, 1908.
    (95 Pac. 435.)
    1. CONSTITUTIONAL LAW — Initiative and Referendum, The initiative and referendum provisions in the Constitution (article 5, sections 1, 2, 3, 4, 5 and article 18, sections 4, 5) are not in conflict with the Constitution of the United States (section 4, art. 4), guaranteeing to every state a republican form of government.
    2. SAME — Non-self-executing. Said provisions as contained therein are not self-executing, but are made effective by an act of the Legislature approved April 16, 1908.
    3. MUNICIPAL CORPORATIONS — Ordinances—Premature Petition for Referendum. Until said nrovisions were made effective by legislation, a petition for a referendum of an ordinance filed with the chief executive officer of a municipality of the first class was of no effect.
    4. HABEAS CORPUS — Violation of Ordinance — Petition for Referendum, An ordinance having been passed and oublished, and thereafter a petition for referendum filed with the mayor of Kingfisher, and afterwards said relator being convicted in said municipal court for .an alleged violation after the filing of said petition, he is not entitled to be discharged from said conviction.
    (Syllabus by the Court.)
    Application of C. L. Wagner for a writ of habeas corpus.

    Writ denied.
    On December 5, 1907, the mayor and council of the City of Kingfisher, Okla., passed an ordinance, No. 118, entitled “An ordinance providing for a levy and collection of a license tax on certain trades, occupations, callings, businesses and avocations, and regulating the same and providing penalties for violation thereof” The ordinance provided for the punishment of persons engaged in business without having paid a license tax as prescribed by said ordinance. On December 12, 1907, the ordinance was published, in the official organ of said city. On December 18, 1907, a petition signed by 25 per cent, of the qualified voters of said' city, demanding a referendum vote on said ordinance and requesting that same be held in abeyance until such election was held at which said ordinance could be voted upon and approved or rejected by the electors of said city, was filed with the mayor thereof.
    On December 20, 1907, relator, C. L. Wagner, was tried and found guilty of violating said ordinance, and adjudged to pay a fine and costs of the action. The relator refused to pay the fine, and for that reason was committed to the city jail by the respondent, George H. Brown, the marshal of said city, under a commitment issued by the police court on the judgment rendered against said relator. The relator alleges in his petition that ever since that date he has been restrained of his liberty under said commitment. Thereafter, on the 2d day of January, 1908, application was made to this court for a writ of habeas corpus for the purpose of determining whether or not he was ^ lawfully restrained of his liberty, and the same was issued on said date, made returnable in the nth day of January, 1908. The ordinance was in due form, and there is no allegation against its validity, but the contention is that by virtue of said petition filed for a referendum vote that the same was held in abeyance until the next city election. George H. Brown, marshal of said city, as respondent, made his return to said writ, showing that he held the relator under a commitment issued by the police court of said city on a judgment of conviction for the violation of said ordinance. The facts as heretofore set out were admitted on a hearing of this cause.

      C. G. Horner and P. S. Nagle, for relator.

      John T. Bradley, Jr., for respondent.
   Williams, C. J.

(after stating the facts as above). The question raised in this case is whether or not a petition demanding a referendum vote upon an ordinance duly passed by a city of the first class after the same had taken effect and was in force, such demand having been presented to and filed with the chief executive officer of such city after such ordinance had been published, suspends the force and effect of said ordinance until the next municipal election. Of course, the question necessarily arises as to whether or not the different sections in the constitution providing for the initiative and referendum are valid, and were in force and effect or self-executing on the 18th day of December, A. D. 1907, the date on which the petition demanding a referendum on said ordinance was filed with the mayor of the city of Kingfisher. The initiative and referendum provisions, relating, not only to the affairs of the state, but also to counties and cities, are taken substantially from the Constitution of Oregon. The Supreme Court of that state, in the case of Kadderley v. Portland, 44 Or. 119, 74 Pac. 720, 75 Pac. 222, has held that the same are not in conflict with section 4, art. 4, Const. U. S., guaranteeing to every state a republican form of government.

The next question is: Were said provisions self-executing on the 18th day of December, A. D. 1907? The Supreme Court of Oregon, in the case of Stevens v. Benson (Or.) 91 Pac. 577, held that the initiative and referendum provisions as contained in the Oregon Constitution were self-executing. The only difference between the provisions in that Constitution and those of this state is that in the former it is provided that, in submitting such petitions to the people, the Secretary of State and all other officers shall be guided by the general laws and the act submitting the initiative and referendum amendment to the people for adoption or rejection until legislation shall be especially provided therefor, clearly indicating that it was the intention in adopting the Oregon amendment that the same should then and there become self-executing. This clause does not appear in the Oklahoma Constitution. Substantially such provision was contained therein prior to the time that the constitutional convention reassembled after the proposed Constitution had been provided to be submitted to the people for adoption or rejection. When the convention reconvened, in order to obviate any possible objection that might be made by the President of the United States to the same, wherein is was required by section 4, art. 4, Const. U. S., and the terms of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 267) to be republican in form, and not in conflict with the provisions of said act, that part was eliminated, leaving it to the Legislature to carry same into effect. There was undoubted wisdom and precaution in that act. If the enemies of the principle of the initiative and referendum in popular government had been able to convince the department of justice of the federal government that such provisions of the initiative, and referendum, when adopted by a state, rendered such state government unrepublican in form, still it remained that until the Legislature acted the principle was not self-executing in the Oklahoma Constitution. And,' until the Legislature enacted measures carrying it into effect, the federal government had less right or reason to complain and that was one of the reasons for such action assigned at the time; for, if that contention against the provisions of the Constitution or to the initiative and referendum had been sustained, yet, as the same were not self-executing in that Constitution, reason and consideration of the rights of the people of the proposed state should certainly have impelled the promulgation of the proclamation of the admission of the state into the Union. For, when the act of the Legislature had been passed carrying same into effect, then the question could in due and proper time have been raised that such act was in conflict with section 4, art. 4, Const. U. S., and been declared void, and by such course preserved the supremacy of the Constitution of the United States, and at the same time vouchsafe the right of local self-government to over one million of citizens.

The Legislature carrying out the intention of the Constitutional convention with commendable fidelity, have enacted what is known as House Bill No. 174, entitled “An act to carry into effect the initiative and referendum powers reserved by the people in articles 5 and 18 of the Constitution of the state of Oklahoma, to regulate elections thereunder, and to punish violations thereof.” (Sess. Laws 1907-8. p. 440), which was approved by the Governor on the 16th of April, A. D. 1908, thereby making absolutely complete and effective said provisions of said Constitution. See Reg. Sess. Laws Or. 1903, p. 244; Sess. Laws Or. 1907, p. 398. This is a very comprehensive act, providing fully for the forms of petition, both initiative and referendum, and for a review of the action of the Secretary of the State by the Supreme-Court, whose judgment shall be final and binding upon such officer, and provisions in detail are contained for the holding of such election. Sections 17, 18, and 19 of the same act relate to municipalities. In said section 17 it is provided that in all cities, counties, and other municipalities which do not provide by ordinance or charter for the manner of exercising the initiative and referendum powers reserved by the Constitution to the whole people thereof, as to their municipal legislation, the duties required of the Governor and Secretary of State by this act, as to state legislation, shall be performed as to such municipal legislation by the chief executive and the chief clerk of such municipality; and the duties required in this act of the Attorney General shall be performed by the attorney for the county, district, or other municipality.

In the case of Taylor v. Hutchinson et al, 145 Ala. 207, 40 South. 109, the court says:

“Our Constitution contains many instances of non-self-executing provisions. Iri these cases there is always some indication that something is left for the Legislature to do, or there is something in the nature of the provision that renders such legislation necessary.”

In the case of Willis v. Mabon, 48 Minn. 140, 50 N. W. 1110, 16 L. R. A. 281, 31 Am. St. Rep. 626, discussing the question as to whether or not a provision of the Constitution of that state was self-executing, the court said:

“The question in every case is whether the language of a Constitutional provision is addressed to the courts or the Legislature. Does it indicate that it was intended as a present enactment, complete in itself as definite legislation, or does it contemplate subsequent legislation to carry it into effect? This is to be determined both from a consideration of the language used and of the intrinsic nature of the provision itself. If the nature and extent of the right conferred and of the liability imposed is fixed by the provision itself, so that they can be determined by examination and construction of its own terms, and there is no language used indicating that the subject is referred to the Legislature for action, then the provision should be construed as self-executing.”

See, also,Acme Dairy v. City of Astoria (Or.) 90 Pac. 153; Swift & Co. v. City of Newport News, 105 Va. 108, 52 S. E. 821, 3 L. R. A. (N. S.) 404;Logan et al v. Parish of Ouachita, 105 La. 499, 29 South. 975.

Section 3, art. 5 Const. (Bunn’s Ed. § 55), relating to the initiative and referendum provision, provides that “the Legislature shall make suitable provision for carrying into effect the provisions of this article.” This especially indicates that it was not the intention of the constitutional convention that said articles should become effective until made so by act of the Legislature. In determining whether or not a provision of the Constitution is self-executing, we should consider the language in the light of the surrounding circumstances and conditions under which it was adopted with a view of ascertaining the intention of the parties framing it. We accordingly conclude that on the 18th day of December, A. D. 1907, the provisions in our Constitution relating to the initiative and referendum were not self-executing, and that they did not become effective until the 16th day of Aj>ril, A. D. 1908, when the act of the Legislature herefore referred to was approved by the Governor of the state.

It is evident that if the provisions of article 5, relating to the initiative and referendum, were not self-executing on December 18, 1907, that section 4, art 18, was also not self-executing, and it results as a matter of course that the petition demanding a referendum vote on the ordinance, filed with the mayor of the city of Kingfisher on the 18th day of December, A. D. 1907, was without effect, and did not operate to supersede or suspend any ordinance. The fact that since said date the Legislature of this state has enacted a comprehensive and valid law carrying into effect all of the provisions of the initiative and referendum as reserved and contained in the Constitution could not give any validity to such petition, as that would have a retroactive effect or be in the nature of an ex post facto law.

Hence it is not necessary, in order to properly dispose of this case, to determine whether or not, after a city or municipality passes an ordinance and it becomes effective, a petition demanding the referendum on such ordinance thereafter being filed with the proper officer, in accordance with the charter or ordinance of said city, or with the general laws of the state, would have the effect to supersede or suspend the operation of such ordinance until the next municipal election. That question is not now properly before this court for determination; it being admitted that the ordinance under which the relator was prosecuted was properly enacted and published and otherwise valid. The only question before this court now is whether or not the demand for the referendum on such ordinance had the effect to supersede or suspend said ordinance. Having reached the conslusion that at the time such ordinance was passed and published the provisions in the Constitution relating to the initiative and referendum not being self-executing, although the same have since then been carried into effect by legislation, would not entitle the relator to the relief prayed for.

Writ of habeas corpus denied.

Turner and Dunn, JJ., concur; Kane and Hayes, JJ., concur in the conclusion denying the writ.


author: Dunn, J.

text:
    State v. Johnson.
    No. 288.
    Opinion Filed May 6, 1908.
    (96 Pac. 26.)
    1. COURTS — Appellate Jurisdiction — Submission by Governor to Supreme Court for Opinion — Conviction of Crime Requiring Punishment of Death. Wilson’s Rev. & Ann. St. 1903, sec. 5588, 5589. provide that, immediately after a conviction requiring a judgment of death, there shall be transmitted to the Governor a statement of the conviction and judgment and of the testimony given at the trial, and that the Governor may thereupon require the opinion of the judges of the Supreme Court, or any of them, upon the statement so furnished. Held that, where such statement is submitted to the court for an opinion, the case is not in the Supreme Court as a suit upon which the judgment may be affirmed or reversed.
    2. PUNISHMENT — Murder—Plea of Guilty — Submission to Jury. Under Wilson’s Rev. & Ann. St. 1903, sec. 2174, providing that on an indictment for murder, where there is a plea of guilty, the court shall determine the punishment, it is the duty of the court on such a plea to fix the punishment, without submission of that question to the jury.
    3. SAME — Proceedings on Plea of Guilty — Irregularity. Defendant in an indictment for murder, having refused to plead thereto, the clerk was instructed by the court to enter a plea of not guilty, whereupon both parties announced ready for trial, and a jury was duly impaneled, and the county attorney made his opening statement. Defendant’s counsel then announced that defendant desired to plead guilty, and defendant, on inquiry by the court, stated that he wanted to plead guilty, and stated further to the jury that he did plead guilty. Thereupon the court instructed the jury to determine the punishment to . be inflicted, and the verdict found the. defendant guilty as charged, and fixed his punishment at death. No evidence v/as received as to his sanity, nor was he cautioned as to the effect of his plea. Held, that such proceedings were so irregular that it cannot be said that defendant was convicted according to law.
    (Syllabus by the Court.)
    Will Johnson pleaded guilty to an indictment for murder, and the trial judge certified a statement of the proceedings, conviction and judgment to the Governor, who submits the same to the Supreme Court for its opinion.
    March 26, 1908, there was returned by the grand jury into the district court of Pottawatomie county, Okla., its indictment, wherein Will Johnson, the above- named defendant, was charged with the crime of murder, alleged to have been committed on the 23d day of January, 1908, upon the person of Mary Cuppy; defendant being charged with having beaten her to death with a piece of two-inch plank and an ax handle. .Defendant was arrested on March 27, 1908, entered a plea of not guilty, and his case was set for trial on April 3, 1908. March 30, 1908, on it being made to appear to the court the defendant was without funds to employ counsel, the court appointed C. G. Pittman, an attorney of that bar, to defend him. April 4, 1908, the case not having come to trial, it was reset for April 6, 1908. Defendant withdrew his plea of not guilty, and his counsel filed a demurrer to the indictment, which was by the court overruled; no exception being saved thereto. On the same day defendant filed a motion for a continuance, setting up the fact that the indictment in the case was returned on the 26th day of March, 1908, and to that date to wit, April 6, 1908, “defendant has not had a reasonable time within which to prepare for trial, and at this time cannot safely proceed to trial for want of material testimony which he has been unable to procure.” This motion was overruled, to which defendant reserved no exception. Thereupon he was again called upon by the court to plead to the indictment, and, refusing to do so, the clerk was by the court instructed to enter a plea of not guilty. Whereupon both parties announced ready for trial, and a jury was duly empaneled, -and the county attorney, V. R. Biggers, Esq., made his opening statement. Whereupon the following proceedings took place:
    “Mr. Pittman: The defendant at this time desires to withdraw his plea of not guilty, and enter a plea of guilty. Mr. Biggers: If the court please, I doubt — I would rather object to his withdrawing his plea at this time. Mr. Pittman: He disires to plead guilty at this time. The Court: Have the defendant stand up. What do you want to do in this case? Will Johnson: Plead guilty. The Court: Do you want to plead guilty to the jury? Will Johnson: Yes, sir. The Court: Do you want to state to the jury why you plead guilty to this charge? Will Johnson: Yes, sir. The Court: And you make your statement to jury what you want to do? Will Johnson: Sir? The Court: And you make your statement to the jury what you want to do? Will Johnson. Gentlemen of the jury, I plead guilty.”
    Thereupon the court delivered the following instructions to the jury:
    “Gentlemen of the jury, this is an action wherein the state of Oklahoma prosecutes Will Johnson on a charge of murder, returned by the grand jurors of Pottawatomie county in the form of an indictment. The indictment has been read to you, and the opening statement of the counsel for the prosecution made, after which the defendant has in open court and to you entered a plea of guilty. You are instructed, gentlemen of the juyy, that, the defendant having entered a plea of guilty of murder, there are two grades of punishment that may be inflicted: The first punishment is by death; the second is by confinement in the, state penitentiary for life. It is now, gentlemen, for you to say by your verdict what the punishment shall be. Two forms of verdict will be handed to you — one imposing punishment by death, and the other imposing the punishment of life imprisonment in the state penitentiary. You will retire, gentlemen, and consider of your verdict. You are instructed that when you shall have retired to your jury room you will select one of your number as foreman, and when you have reached a verdict he will sign it as such and you will all return into court with it. You are instructed, further, that you must be unanimous in your conclusions. Unless you all agree, of course, no verdict can be returned. And now, the hour of 6:30 p. m. having arrived, court is adjourned until such time as the jury may agree upon a verdict.”
    The jury retired, and returned into the court its verdict, finding “the defendant, Will Johnson, guilty as charged in the indictment of murder, and fix his punishment at death.”
    Motion for new trial was filed for the following reasons:
    “First, that said verdict is contrary to law; second, that said verdict is contrary to the evidence; third, that the court misdirected the jury in matters of law and fact arising during the course of the trial which were prejudicial to the substantial rights of the defendant.”
    Such motion was by the court overruled, to which defendant saved his exceptions. He thereafter filed his motion in arrest of judgment, which was likewise overruled, to which the defendant excepted. The said motions were both filed on April 7, igp8, and were considered by the court on the 14th day of April, 1908. Upon the overruling of the said motions the court, upon the consideration of the verdict rendered by the jury, pronounced its judgment and sentence as follows:
    “It is therefore considered and ordered by the court that judgment be entered on the verdict of the jury in this case, aad it is the judgment and sentence of this court that as a punishment of the crime which you have committed you be hanged by the neck until you are dead, and that your execution take place within the jailyard of the county jail of Pottawatomie county, state of Oklahoma, at eleven (11) o’clock in the forenoon on Friday, May 22, 1908.”
    On such sentence, Wilson’s Revised & Annotated Statutes of 1903 of Oklahoma require (sections 5588 and 5589):
    “The judge of a court at which a conviction requiring a judgment of death is had must, immediately after the conviction, transmit to the Governor, by mail or otherwise, a,statement of the conviction and judgment, and of the testimony given at the trial. The Governor may thereupon require the opinion of the judges of the Supreme Court or any of them upon the statement so furnished.”
    In accordance with this the clerk of the district court made a certified statement of the conviction and judgment and the proceedings had at the trial, and the judge of said court, Hon. W. N. Maben, transmitted the same to his excellency, Gov. C. N. Haskell, of the state of Oklahoma. In accordance with the terms of said statute, the Governor has required the opinion of the judges of the Supreme Court.
   Dunn, J.

(after stating-the facts as above). Doubtless the purpose of the framers of the statute above quoted was tp^give the chief executive of the state proper information upon which to base his judgment upon an application for a pardon or a reprieve, and in addition thereto, and providing a further safeguard, by making it the duty of the judges of the Supreme Court, or any one of them to give their opinion for his guide and assistance, to the end that so serious an act as the taking of a human life shall not occur without the same having the most .deliberate and calm consideration of the highest executive and judicial officials of the state. The record before us, as is seen from the statement of facts and the recital of the manner and purpose for which it comes, is not filed as a suit in this court, upon which we would either affirm or reverse .the judgment. It does not come in a manner required by law for such purposes. Bailey et al. v. Territory of Oklahoma, 9 Okla. 461, 60 Pac. 117 Yet we have given the same our most careful and attentive consideration, and we submit herewith for the consideration of his excellency, the Governor, the judicial and legislative expressions which have been uttered by other courts, text-writers- and states dealing with judicial admissions in cases of this grave character.

Greenleaf on Evidence, vol. 1 § 216, states the rule which seems to be followed very generally by most of the courts in cases of judicial' confessions or admissions such as the one at the' bar. It is as follows:

“Confessions are divided into two classes, namely .judicial and extrajudicial. Judicial confessions are those which are made before the magistrate, or in court, in the due course'of legal proceedings ; and it is essential that they be made of the free will of the party, and with full and perfect knowledge of the nature of the consequences of the confession. Of this kind are the preliminary examinations, taken in writing by the magistrate pursuant to statutes, and the plea of ‘guilty’ made in open court to an indictment. Either of these is sufficient to found a conviction, even if to be followed by a sentence of death; they being deliberately made, under the deepest solemnities, with the advice of counsel, and the protecting caution and oversight of the judge.”

Bishop’s New Criminal Procedure, vol. 1 § 795, is as follows:

“Undoubtedly a prisoner of competent understanding, duly enlightened, has the right to plead guilty, instead of denying the charge. Yet in proportion to the gravity of the consequence the court should exercise caution in receiving this plea. Thus, where one tendered it in a capital case, the judges would not accept it tili they had explained to him its serious nature, sent him back to his cell for reflection, brought him back again into court, had the indictment read to him a second time, and examined witnesses as to his sanity, and whether or not promises of clemency had been made to him. These steps are not in form taken in all cases, but they illustrate an ever-present caution. And in some of the states there are varying statutory and other like devices to protect defendants from improvident pleas of guilty.”

An inspection of the case of Commonwealth v. Battis, 1 Mass. 94, cited by Mr. Bishop in support of his text, shows that the defendant was' a negro, who was indicted for the murder of a white girl of about 13 years of age. On being brought before the court, he pleaded guilty, whereupon the following proceedings were had:

“The court informed him of the consequence of his plea, and that he was under no legal or moral obligation to plead guilty, but that he had'a right to deny the several charges, and put the government to the proof of them. He would not retract his pleas, whereupon the court told him that they would allow him a reasonable time to consider of what had been said to him and remanded him to prison. They directed the clerk not to record his pleas at present. In the afternoon of the same day the prisoner was again set to the bar, and the indictment for murder was once more •read to him. He again pleaded guilty. Upon which the court examined, under oath, the sheriff, the jailer, and the justice (before whom the examination of the prisoner was had previous to his commitment) as to the sanity of the prisoner, and whether there had not been tampering with him, either by promises or persuasions, or hopes of pardon, if he would plead guilty. On a very full inquiry, nothing of that kind appearing, the prisoner was again remanded, and the clerk directed to record the plea on both indictments.”

Another case, Territory v. Miller, 4 Dak. 173, 29 N. W. 7, was one where the defendant pleaded guilty of murdei, and the following quotation from the opinion shows the caution and care exercised by the court before passing sentence:

“The court thereupon carefully warned and admonished him of the solemn consequences of such plea, and that it would be a plea of guilty of murder, and would be so entered, and not, as insisted by his counsel, a plea of some lesser crime, and further informed him that if he pleaded not guilty he could have the facts passed upon by a jury, who might find him guilty only of the lesser offense, or not guilty of any offense. The défendant’s counsel excepted to these admonitions, and, upon the court asking defendant whether he pleaded guilty or not guilty to the charge of murder as charged in the indictment, insisted that the court should ask the defendant whether he pleaded guilty or not guilty. The court, however, renewed the interrogatory, ‘do you plead guilty or not guilty to the charge of murder as charged in the indictment?’ to which defendant replied, ‘Guilty.’ The court thereupon directed that the plea of guilty be entered to the charge of murder as set out in the indictment. Upon the suggestion of the district attorney, and against the objection of the defendant’s counsel, the court subsequently, in the presence of the defendant and his counsel, and before proceeding to judgment, examined several witnesses for the purpose of informing itself as to the nature and circumstances of the offense, from all which it appeared, as, indeed, was freely admitted, both then and upon the argument in this court, that the crime was one of very great atrocity; the defendant having confessed, and being abundantly corroborated by other evidence, that during the temporary absence of his employer he , had murdered his wife and infant son with an ax after they had retired to bed, and that the motive of the crime was the plunder of the cash box kept in Mrs. Snell’s bed room.”

Another case of the same class and character is People v. Lennox, 67 Cal. 113, 7 Pac. 260, wherein it will be observed that the court, upon a plea of guilty in a case of this character, examined 30 witnesses to ascertain the grade of the offense:

“The defendant pleaded guilty. Thereupon the court proceeded to hear evidence for the purpose of fixing the degree of the crime. Witnesses were examined, as well those offered by the defendant as for the prosecution — some 30 in all. After hearing the evidence, the court fixed the degree of the crime, to be murder in the first degree, and set September 11, 1884, as the day. on which the punishment should be determined. On that day the court, referring to section 190 of the Penal Code and to the testimony which had been taken, declared to the defendant that the discretion to be exercised by the court as to whether the punishment should be death or imprisonment for life was the same as that 'from the evidence in this case I can find no circumstances that' from the evidence in this case I can find no circumstances of mitigation, but many of aggravation. The fact that your passions were inflamed with strong drink can furnish no extenuation. I must therefore adjudge that you be taken hence by the sheriff of this county to its county jail, where you will be by him retained until at a time and place to be hereinafter determined by the court you will be hanged by the neck until you are dead.’ ”

A rather unusual case from Illinois (Gardner v. State, 106 Ill. 76) was one wherein a German, unfamiliar with the English language, was charged with murdering a woman at whose house he was stopping. On being brought before the court, and without counsel assigned him, he pleaded guilty to the charge. The court thereupon interrogated him and examined him through an interpreter accepted his plea of guilty and sentenced him to be hanged. The Supreme Court on this matter said:

“We have no doubt the accused understood that he was charged with the killing of the deceased, and also that he did not wish to deny that fact; yet at the same time we think it highly improbable that he understood the difference between a charge of murder and a mere charge of taking life, of that one might be proved guilty of killing another and yet not be guilty of any offense at all, or at least of the offense of murder. Even admitting the court would be justifiable in entering a plea of guilty upon admissions thus obtained (which we have just seen it would not), it is clear the admission of the accused in this' case that he killed the deceased, without a more satisfactory account of the attending circumstances, was not sufficient to authorize the entry of that plea. The killing, as is well understood, standing alone, does not constitute the crime of murder, but rather a single link in.the chain of testimony to establish that crime.”

In another case, which arose in Missouri (State v. Stephens, 71 Mo. 535), the court speaking through Sherwood, C. J., quotes with approval the following from some of the older authorities upon the care and regard that should be had by the trial court in acting upon á plea of guilty by a defendant in felony cases:

“Courts have always been accustomed to exercise a great degree of care, in receiving pleas of guilty in prosecutions for felonies, to see that the prisoner has not made his plea by being misled, or under misapprehension or the like. Thus it is said by Arch-bold in regard to the point being discussed: ‘If, instead of pleading not guilty, the defendant says that he is guilty, this is a confession of the offense, which subjects him precisely to the same punishment as if he were tried and found guilty by 'verdict. But as defendants often imagine that, by pleading guilty, they are likely to receive some favor from the court in the sentence that will be passed upon them, the judge very frequently undeceives them in that respect, and apprises them that their pleading guilty will make no alteration in their punishment. If, however, they still persist in their plea of guilty, it is then recorded.’ etc. 2 Archb. 334. And Hawkins says: ‘Where a person, upon his arraignment , actually confesses himself guilty, or unadvisedly disclose the special manner of the fact, supposing that it did not amount to felony, where it doth, yet the judge upon probable circumstances that such confession may proceed from fear, menace, or duress, or from weakness or ignorance, may refuse to record such confession and suffer the party to plead not guilty.’ 2 Hawk. P. C. 469.”

The danger of a court without due consideration passing upon a plea of guilty and rendering a judgment thereon was., conceived by legislatures of at least two states in the Union, Michigan andTexas, to be so great that they passed special statutes regulating the attention that should be given by the court to this matter. Section 9558, 2 How. Ann. St. Mich., is as follows:

“The people of the state of Michigan enact, that whenever any person shall plead guilty to an information filed against him in any circuit court, it shall be the duty of the judge of such court, before pronouncing judgment or sentence upon such plea, to become satisfied, after such investigation as he may deem necessary for that purpose, respecting the nature of the case, and the circumstances of such plea, that said plea was made freely, with full knowledge of the nature of the accusation, and without undue influence. And whenever said judge shall have reason to doubt the truth of such plea of guilty, it shall be his duty to vacate the same, direct a plea of not guilty to be entered, and order a trial of the issue thus formed.”,

The Texas statute is found under articles 554 and 555 of their criminal procedure act, as follows:

“If the defendant plead guilty he shall be admonished by the court of the consequences; and no such plea shall be received unless it plainly appear that he is sane, and is uninfluenced by any consideration of fear, by any persuasion, or delusive hope of pardon prompting him to confess his guilt. Where a defendant in a case of felony persists in pleading guilty, if the punishment of the offense is not absolutely fixed by law, and beyond the discretion of the jury to graduate in any manner, a jury shall be impaneled to assess the’punishment, and evidence submitted to enable them to decide thereupon.” \

And wherever the trial courts in these states have to any extent departed from these provisions the reported cases we have examined show the appellate courts have reversed the causes and remanded them for trial. We have no such statute to control the discretion of the courts in this state, but the authorities above cited are sufficient to indicate the policy of the law in the absence of such direct requirements.

In his letter transmitting this record Judge Maben states:

“I am able to send you a full statement of the case and all of the proceedings; but there is no evidence, for the reason that the defendant, after a jury had been selected, entered a plea of guilty, or a judicial confession, to the jury.”

The record before us does not disclose that the plea in this case was offered and accepted, as indicated in the language of Mr. Greenleaf, “under the deepest solemnities, with the advice of counsel, and the protecting caution and oversight of the judge,” nor with the high degree of care and caution required, as indicated by Mr. Bishop, “in proportion to the gravity of the consequences.”

St. Okla. par. 2174, § 255, under the head of “Crimes and Punishments,” provides:

“Every person convicted of murder shall suffer death, or imprisonment at hard labor in the territorial penitentiary for life, at the discretion of the jury. Upon trial of an indictment for murder, the jury, if they find the defendant guilty, must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor, and the' judgment of the court shall be in accordance therewith. But upon a plea of guilty the court shall determine the same.”

It will be observed in the case at bar that the defendant stated to the jury. “Gentlemen of the jury, I plead guilty';” that this was the only statement which the jury had upon which to predicate its verdict; that upon this, and this alone, it found defendant guilty and fixed his punishment at death; and the court, in rendering its judgment, based it, not upon the plea, but upon the verdict of the jury. It will be observed from the statute that upon a plea of guilty the court, and not the jury, shall determine the punishment. The function of the jury is to find from the evidence and facts adduced before it the final conclusion of guilt or innocence ; but when the prosecution asserts guilt, and the defendant admits it, and his admission is accepted, there is no duty for a jury. Its function is over. Then it is the duty of the court attaches. And now this record is before us, and we are called on to say whether or not the formalities of the law essential 'to the taking of human life have been observed.

We have no power .to reverse this judgment, as no cause is before us, but we are of the opinion that there are such irregularities disclosed by the record that we cannot say that the defendant, was convicted according to the forms of law.

All the Justices concur.


author: Turner, J.

text:
    State ex rel. Stevenson v. Russell, Judge.

    No. 168.
    Opinion Filed May 13, 1908.
    (95 Pac. 463.)
    1. MANDAMUS — When Lies. The wTit of mandamus will not lie except to compel the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station.
    2. SAME — To Judge — Admission to Bail — Records. The writ of mandamus will not lie to compel a district judge to enter of record in the district court of a certain county in his district an alleged order -admitting defendant to bail, where it appears that the same is not there properly entitled to record.
    (Syllabus by the Court.)
    Application by the state, on the relation of James Stevenson, for writ of mandamus to S. H. Russell, judge of the district court of Carter county.
    Writ denied.

      Pruiett, Cardwell & Sniggs. for relator.
    S’. H. Russell, pro se.

   Turner, J.

On February 19, 1908, the petitioner, James Stevenson, brought an original proceeding in this court for a writ of habeas corpus to secure his release from custody on bail. The petitioner urged two grounds on which he claimed his right to the writ; the first being that after his indictment for a capital offense he applied to the Honorable Hosea Townsend, who at that time was judge of the United States Court for the Southern District of the Indian Territory, for bail, and that said judge admitted the petitioner to bail in the sum of $5,000 and that after the transition of said court into the district court of the state of Oklahoma the said court of said district refused to admit the petitioner to bail under said order. That petitioner thereafter applied to the Honorable R. McMillan, judge of the Fourteenth judicial district of the state of Oklahoma, to be admitted to bail, and a hearing of said application was had; that upon considering the testimony the said judge of said court committed the petitioner to the common jail of Cleveland county to be held upon said indictment without bail; that said, restraint was illegal; that petitioner was not guilty of the crime of murder or any crime, and the proof of guilt was not evident, nor the presumption thereof great. An alleged copy of which said order was filed with his said petition. His contention was that said order adfnitting him to bail was res adjudicata as to his right thereto. But it appeared on that application that no order granting bail was ever entered of record on the journal of either the United States Court for the Southern district of the Indian Territory or the said district court of Carter county, Okla., or, indeed, of any court whatever, and for that reason the writ of habeas corpus was denied.

This is an original application for a writ of mandamus filed herein on April 22, 1908, by said petitioner to require the Honorable Stilwell H. Russell, judge of the district court of Carter county, to pass judgment upon an application to supply the record in said cause and have said order- entered therein, a copy of which is alleged by petitioner to have been presented to him as an exhibit to said petition, and which it is alleged he refused to do or consider. On April 30, 1908, respondent filed answer to the alternative writ of mandamus issued herein, and the cause came on for hearing upon an agreed statement of facts. During the hearing it developed that the alleged original order of Judge Townsend admitting defendant to bail in the sum of $5,000 was on file in this court with petitioner’s application for bail aforesaid, but had never been entered of record, either in the district court of Carter county or in the district court of Me-Lain county where the indictment is pending, or anywhere else, so far as this court is advised. It does not clearly appear to this court from the testimony submitted on this application whether this'alleged order was made as a court order or a chambers order by Judge Townsend at Ardmore; but from the face of a copy of the alleged order it appears to be a court order made by him at Purcell.

The court is therefore of the opinion that said order is in no event properly admissible of record in the district court of Carter county, and for that reason the peremptory writ of mandamus in this case is refused.

All the Justices concur.