source: Caselaw Access Project

author: Dunn, J.

license: Public Domain

text:
      Ex Parte Grimes et al.

    No. 67.
    Opinion Filed March 12, 1908.
    (94 Pac. 668.)
    1. INJUNCTION — Restraining Order Distinguished — Bond. The fact that a bond is required by the court and given by the party applying for a restraining order at the time of its issuance will not have the effect of changing the same to a temporary injunction. It is the better practice to require bond in all such cases.
    2. SAME — Contempt—Violation of Restraining Order — Expiration of Order. Where a restraining order fixes a day certain for the parties against whom it is secured to appear and show cause why a temporary injunction should not issue, and at the time thus fixed neither the parties nor the court take any action, the order thereby spends its force and is of no further validity, and a judgment holding a party in contempt for the violation of its terms is void, and he is entitled to be released on habeas corpus.
    3. SAME — Revival of Order.- Where a restraining order has spent its force by reason of no action taken on the day set to show cause, the belief of the parties to the suit that it is still effective and a motion filed by defendants for its vacation will not revive it for or against either of them.
    4. SAME — “Until Further Orders of this Court.” The words, “Until the further orders of this court,” contained in a restraining order in conjunction with a day set for a hearing on which parties are required to show cause, if any. why a temporary injunction should not issue against them, have no other or further meaning than “in the meantime.” Any other construction would be inconsistent with the very object of the requirement to show cause.
    (Syllabus by the Court.)
    Application of Lewis C. Grimes and L. C. Grimes, Jr. for a writ of habeas corpus.

    Writ granted.
    On April, 11, 1905, on petition and affidavits duly filed in the office of the clerk of the district court of Oklahoma county, Hon. B. F. Burwell, judge of said court, granted an order, entitled “Restraining Order” against- Lewis C. Grimes and L. C. Grimes, Jr., et al., which was in words and figures as follows, to wit:
    “Now on this nth day of April, 1905, the above entitled matter comes on to be heard before the undersigned, B. F. Burwell, judge of the above-entitled court, the said plaintiff appearing by his attorneys, J. H. Everest and C. F. Smith, and the court having examined the petition duly verified by the plaintiff and the supplementary affidavit sworn to by said plaintiff and filed herein, finds that said petition and affidavit has been duly filed in the office of the clerk of this court, and that said petition and affidavit show the said plaintiff to be entitled to a temporary restraining order, pending the hearing upon the application for a temporary injunction herein, upon the execution of a good and sufficient bond in the sum of one thousand dollars, to be approved by the clerk of this court and filed with said clerk.
    “It is therefore ordered by the court that the said defendants, Lewis C. Grimes, L. C. Grimes, Jr., Frank Curry and Roe Curry, and each of them, are hereby forbidden and restrained from going upon, trespassing upon, or in any way interfering with the said plaintiff in the use and possession of the land described in said plaintiff’s petition, to wit, the east one-half (E.J^) of the northwest quarter (N. W. 14), and the west half (W. %) of the northwest quarter (N. W. %), and the west one-half (W. Jf>) of the northeast quarter (N. E. %)> all in section twenty-four (24),. township twelve (12) north, of range (1) east, in Oklahoma county, territory of Oklahoma, until the further orders of this court, and that the hearing upon the application of said plaintiff for a temporary order herein be and hereby is set for April 22, 1905, at 9 o’clock a. m., before the above-entitled court, at Oklahoma City, said county and territory, and the said Lewis C. Grimes is hereby restrained and forbidden either by himself or through his agents,servants, employes, tenants and any and all other persons acting by, through, 01 under his authority, from plowing up and cultivating any portion of said lands, or from destroying or harvesting any of the crops now growing on said lands, and from in any way interfering with the plaintiff Levi J. Pipher, in the quiet use and enjoyment of the said lands and premises until the further orders of this court or the judge thereof, and the hearing upon said application for a temporary injunction herein, provided, however, that this order shall not take effect until said plaintiff shall have executed and filed with the clerk of this court a good and sufficient bond with sureties, to be approved by the clerk of this court, in the sum of one thousand & no-ioo dollars, conditioned that he will pay to the said defendants any and all damages which they.may sustain if this order shall have been wrongfully obtained and issued.
    “And the said defendants and each of th.em are hereby commanded to appear before the undersigned judge of the above-entitled court at 9 o’clock a. m. 'of the 22nd day of April, 1965, and then and there show cause, if any, why a temporary in junction shall not issue herein against them, pending the final hearing and disposition of this cause. B. F. Bur well,
    “Judge, Third Judicial District.”
    The bond given as required by the order was approved by the clerk, .but» at the time, the 22d day of April, 1905, when the hearing was ordered to take place as provided for in the order, no action of any kind was taken by the parties or the court. On .the 21st day of June, 1905, the defendants filed a verified motion and answer to vacate and set aside and declare for naught the said restraining order. Reply was filed in this case, but no further action was'taken until on January 7, 1908, when the plaintiff Levi J. Pipher, filed his affidavit in the office of the clerk of the district court of Oklahoma county setting up a violation of the restraining order, and Hon. George W. Clark, judge of the district court of Oklahoma County, issued an- order to Lewis C. Grimes, and L. C. Grimes, Jr., citing them to appear before him on -the 10th day of January, 1908, or as soon as counsel could be -heard to show cause, if any, why they should not be punished for contempt by reason of then disregard and violation of the order of the court above set out. On this citation, such things were had and done and such action taken that on the 8th day of February, 1908, the said court,Hon. Joseph G. Lowe, presiding judge, entered judgment against the said parties holding them guilty of contempt, and committing them to the custody of the sheriff of Oklahoma county until a fine assessed and the costs of the proceeding were paid, and until they made restitution of the premises in question, and made bond in the sum of one thousand dollars ($1,000) to obey the restraining order which they were charged with violating.
    /. M. Adams, Jr., and Blakeney & Maxey, for petitioners.

      Chas. J. West, W. C. Reeves, J. H. Everest, and C. F. Smith, for respondent.
   Dunn, J.

(after stating the facts as above). This cause is before us on application for writ of habeas corpus, the parties claiming their right to discharge, and alleging, among other things, that, “at the time designated in the restraining order, these defendants had appeared 'by counsel in the district court of Oklahoma county at place designated in Oklahoma City, therein, but that no further order was made in the said action, and that no temporary injunction was ever issued, and that said restraining order had become inoperative and was of no force and effect and had 'expired,” and hence that the judgment of the court issued therein was a nullity and void. The respondent in this case takes the position that the order granted by Judge B-urwell on the nth day of April, 1905, for the violation of which the petitioners are held in contempt, was a valid, existing order of injunction in January, 1908, at the time of the alleged violation. The petitioners, on the other hand, base their claim to a writ of habeas corpus and to release upon the proposition, as above stated, that the order was a mere restraining order, whose force was spent and expired on no action being taken on the 22d day of April, 1905, when they were cited to show cause, if any, why a temporary injunction should not issue against them. These two contentions make necessary the scrutinizing of the law. as well as the order to determine its force and effect.

Section 4425, of Wilson’s Revised & Annotated Statutes of Oklahoma for 1903, under the subject “Injunction,” reads as follows: ■ ,

“When it appears, by the petition, that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce injury to the plaintiff; or when, during the litigation, it appears that the defendant is doing ,or threatens, or is about to do or is procuring or suffering to be done, some act in violation of the -plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act.”

Under the terms of this statute a temporary injunction may be granted without notice to the parties on whom it is to operate. This section, however, must be read in conjunction with section 4429, Wilson’s Rev. & Ann. St. 1903, which provides that “no injunction, unless otherwise provided by special statute, shall operate until the party obta the same shall give an undertaking.” The other paragraph, under the subject of “Injunction,” requiring consideration by virtue of this order, is section 4427, Wilson’s Rev. & Ann. St. 1903, which reads as follows:

“If the court or judge deem it proper that the defendant, or any party to the suit, should be heard before granting the injunction, it may direct a reasonable notice to be given to such party to attend for such purpose, at a specified time and place, and may in the meantime restrain such party.”

Under which of these statutes was this order issued ? Un- ■ doubtedly the temporary injunction mentioned in section 4425 is a writ of higher character than the restraining order mentioned in section 4427, for a writ issued under the former would be of no force, validity, or effect except on the execution of a bond by the parties securing the same, while no such rule seems to be specifically required by the statute in the latter case. The former embodies a restraint which continues, unless modified by the court, until the hearing of the cause, and then it is made either permanent or discharged altogether; while the latter, strictly speaking, is, not an injunction at all, but a writ of the court to compel parties to maintain the matters in controversy in statu quo until the question of whether or not a temporary injunction ought to issue may be determined. No bond is, by the statute, required on the issuance of a temporary restraining order, although many authorities hold that it is better practice to require it.

“According to the statutes of some of the states, a temporary restraining order may be granted pending the order to show cause, without requiring bond of the plaintiff; but it is always the better practice to require a bond.” (10 Ency. P. & P. p. 1016, and cases cited.)

See, also, Neumann and Neumann v. Moretti, 146 Cal. 31, 79 Pac. 512; Prader v. Purkett et al., 13 Cal. 588.

From these authorties it will be observed that the fact that a bond may be required or is given will not in itself change the character of a restraining order to that of a temporary injunction; indeed, in a great majority of cases, the bond seems to have been required and given.

• Under the terms of the statute, the court may direct a reasonable notice to be given to the party against whom an injunction is sought, and may in the meantime restrain him; and this either with or without a bond in its discretion, and in either event the character of the order remains the same. The question which now presents itself is, what effect will the restraining order have after the day on which the court cites the parties to appear to show cause why a temporary injunction should not be issued, when neither of them appears on that day and no further action of any kind or character is taken ? The authorities seem to be reasonably uniform upon the question, and all sustain with apparent unbroken regularity the holding that it dies, and has no force and validity after that date, even though neither of the parties nor the court take any action.

“A restraining order is an order granted to maintain the subject of controversy in statu quo until the hearing of an application for a temporary injunction. It may be issued before notice to defendant in order to prevent irreparable injury pending the hearing Its purpose is merely to suspend proceedings until there may be an opportunity to inquire whether any injunction should be granted, and it is not intended as an injunction pendente lite; hence its duration should be limited to such a reasonable time as may be necessary to notify the adverse party, especially where defendant is likely to be damaged by delay. A restraining order ceases to be operative at the expiration of the time fixed by its terms; or if at the time fixed by it to show cause there is no appearance by either party, and the motion for injunction is not continued or kept alive in any mode, although there is no order of dissolution, and although the restraining order provides that it shall be effective until further order.” (22 Cyc. p. 745.)

In a case from Utah, Miles v. Sheep Rock Mining & Milling Company, 15 Utah 436, 49 Pac. 536, the court issued a restraining order against the collection of an assessment levied on certain stock. A day was fixed allowing the parties to show cause why a temporary injunction should not be granted, and the court, in considering tbe facts in connection with the restraining order, says :

“If upon the date so fixed there is no appearance of the parties, and no continuance of the hearing on the motion for the injunction, the restraining order falls with the motion, and the restraint upon the collection of the assessment is at an end. Under such circumstances it requires no order of court to dissolve the restraining order. Its life ceases with that of the motion, for such an order is not intended as an injunction pendente lite, and is not an injunction within the meaning of the provision of the statute above quoted.”

The statute of Utah relating to temporary restraining orders is practically the same as that of Oklahoma, and is as follows:

“If the court or judge deem it proper that the defendant, or any of several defendants, should be heard before granting the injunction, an order may be made requiring cause to be shown, at a specified time and place, why the injunction should not be granted; and the defendant may in the meantime be restrained.” (2 Comp. Laws Utah, 1888, § 3304.)

The case of State of Nebraska ex rel. George H. Downing, v. Greene Dist. Judge, 48 Neb. 327, 67 N. W. 162, was an original application for writ of mandamus in the Supreme Court of the state of- Nebraska to compel the respondent, as judge of the Twelfth judicial district, to fix the amount of a supersedeas bond to be given by relator, who had bought out the laundry business of one Lewis et al. under the agreement that they would not again engage in such business. On a violation of this contract, relator sought to enjoin them, and secured from the county judge a restraining order, who set the hearing thereon for a day certain. Bond was required and given as in’the case at bar. The statutes of Nebraska relating to temporary injunctions and restraining orders are precisely the same as the statutes of Oklahoma. , In the consideration of the case, the court said:

•“Clearly no temporary injunction was granted by the county judge. He merely issued an order restraining the defendants from conducting the laundry business until the application for a temporary injunction could be heard by the district court or the judge thereof, and fixed a time for such hearing. No such hearing was had at the time designated, and therefore the restraining order by its own limitation ceased to have any binding force and effect, and could not be revived and' continued in force by ‘the giving of a supersedeas bond.”

The case of San Diego Water Company v. Pacific Coast Steamship Company, 101 Cal. 216, 35 Pac. 651, was an action upon an undertaking given in a suit by the steamship company against the plaintiff, and upon which the individual defendants were sureties. In that case a restraining order was obtained in support of which the bond was executed. A day was fixed on which the parties were cited to show cause why a temporary injunction should'not be issued. No appearance was made, and the court said:

“This order contained a clause restraining the defendant ‘pending this order to show cause and until the further order of this court.’ There was no appearance by either party at the time the order to show cause was returnable nor was the motion for an injunction continued or kept alive in any mode. The restraining order, therefore, which is only authorized to be made pending the motion, fell with the motion. Code Civ. Proc. § 530; Hicks v. Michael, 15 Cal. 107. In the last case Judge Field says that an order dissolving such a restraining order is not necessary. It ends naturally with the motion.”

From these authorities it will be observed that in a case where the order issued comes within the provision of the statute governing a restraining order, and nothing is done on the day set for the hearing to continue or keep it alive in any way, it then becomes a nullity and of no force and validity to restrain the party in any particular, and, as Judge Field says, “an order dissolving it is not necessary. It ends naturally with the motion.”

It being seen from the authorities above cited that the giving of a bond will not change the character of a restraining order into that of a temporary injunction, and that such restraining order is of foixe and effect only until the date set for the hearing, we now come to the question of whether or not there was in the order granted in this case anything which created of it a temporary injunction, thereby taking it out of the rule governing restraining orders. If not, the fact that the relators filed a motioU to dissolve and believed it to be operative will not have force to create an injunction where none would have existed otherwise. This, however, is the contention of respondent, and he relies to sustain it upon, the proposition that the order contained the following language:

“It is therefore ordered by the court that the said defendants Lewis C. Grimes and L. C. Grimes, Jr., * * * and each of them, are hereby forbidden and restrained from going upon, trespassing upon, or in any way interfering with the said plaintiff in the use and possession of the land described in said plaintiff’s petition, to wit: * * * until the further orders of this court, * .* * and the said Lewis C. Grimes is hereby restrained, etc., * * * from in any way interfering with the plaintiff Levi J. Pipher in the quiet use and enjoyment of said lands and premises until the further orders of this court or the judge thereof, and the hearing upon said application for a temporary injunction.”

The question now arises, independent of any other recitals in said order, what is the effect of the language contained therein, to wit, “until the further orders of this court,” and the further phrase, “until the further arders of this court or the judge thereof” ? Do those provisions create of this order a temporary injunction, or is such language restricted and limited in its scope by the inherent character of the order itself?

The case of Hicks v. Michael, 15 Cal. 107, was one wherein the county judge issued a restraining order which on the day set for the hearing thereof was set aside, and the plaintiffs asked for a supersedeas to hold the restraining order in effect until the trial of the cause. This suspensive appeal bond, as- it was called, was denied, and this case was brought to compel the judge to allow such bond. Chief Justice Field, in delivering the opinion, says:

“Upon the complaint in this cause, application was made for an injunction. The county judge, to whom the application was made, issued an order upon the defendants, returnable on the 29th of October, to show cause why an injunction should not issue as prayed for, and restraining them from the commission of the acts which are the subject of complaint, 'until the hearing of the whole matter.’ The .hearing upon the order was continued until the 8th of December, when by the consent of the parties, it was brought on before the district judge, who, after argument, refused the injunction, and dissolved the restraining order. * * * The restraining order expired by its own limitation. It was issued under the provisions of the one hundred and sixteenth section of the practice act, and was intended only as a restraint upon the defendants until the propriety of granting the provisional remedy of a temporary injunction could be determined, after hearing the parties. The concluding words of the order do not operate to change it into an injunction pending the suit. They only refer to the whole matter on the motion, and not to the whole matter in controversy. The construction insisted upon by counsel is inconsistent with the very object of the requirement to show cause. The direction of the district judge that the restraining order be dissolved was unnecessary, and was probably inserted out of abundant caution.”

Section 16 of the practice act referred to is very similar to our statute on restraining orders, and is as follows:

“If the court or judge deem it proper that the defendant or any of several defendants, should be heard before granting the injunction, an order may be made requiring cause to be shown, at a specified time and place, why the injunction should not be granted; and the defendant may, in the meantime, be restrained.”

It will be noted that the same language is contained in the statute — “in the meantime” — as is used in our own statute. The order issued in this case did not contain the language of the ordei in the case at bar “until the further orders of this court.” but contained the language, as above set out, “until the hearing of the whole matter.” As is seen, it is contended that this language changed the restraining- order into a temporary injunction pending suit, just as is contended in the case at bar that the language, “until the further orders of this court,” changed this restraining order into a temporary injunction, and the court in that case, as might well be said in this one, said “the construction insisted upon by counsel is inconsistent with the very object of the requirement to show cause.”

In another case from California, Curtiss v. Bachman, 110 Cal. 433, 42 Pac. 910, 52 Am. St. Rep. in, wherein it was sought to recover damages sustained by virtue of a temporary injunction issued in a prior suit, the restraining order contained the same language as the restraining order in the case at bar, to wit, that the defendant be restrained “until the further»orders of this' court.” The court construes this language in the following quotation :

“When the plaintiff, at the commencement of the action, applied for the injunction, the court deemed it proper that the defendant should be heard before granting the writ, and made an order to that effect. .Upon this application, the judge was authorized to restrain the defendant ‘in the meantime.’ Code Civ. Proc. § 530. The provision in the order restraining the defendant ‘until the further order of the court’ had no other meaning than ‘in the meantime,’ or until the decision upon the order to show cause. Sweet v. Mowry, 71 Hun. 381, 25 N. Y. Supp. 32.”

An inspection of the case cited in support of the decision just quoted, Sweet v. Mowry, 71 Hun. 381, 25 N. Y. Supp. 32, discloses that the restraining order granted in that case likewise contained the language “until the further order of the court,” and in construing it the court held that it had no other meaning or force than is allowed in the language “until the hearing and decision of the application,” which is equivalent to the language of our statute “in the meantime.” To render the matter clearer, we quote the following from the decision of the Court:

“When the application for an injunction was first made, the judge had the right .to deny it until notice of the application was given the defendants, or he might then grant an order requiring them to show cause why such injunction should not be granted. Whichever course he took, he had the right to then ‘enjoin the defendants until the hearing and decision of the application.’ Code Civ. Proc. § 699. In this case, he made an order to show cause, and enjoined the defendants until the further order of the court. * * * Although the order made June 7th, in terms, is to continue ‘until the further order of the court,’ we give it no other meaning or greater force than is allowed it by section 609 —that is, ‘until the hearing and decision of the application’— and therefore we say that when such decision was made, whichever way it might be, an order would be made that would supersede the restraining order already granted.”

It is the fundamental inherent difference in the character of relief granted in a restraining order from that granted in a temporary injunction which causes the courts, notwithstanding the fact that the order contains provisions similar to “until the -further orders of this court,” and like clauses, to adhere to the restraining character of the order and deny it the force and vigor of an injunction. For, as is said in the case of San Diego Water Co. v. Pacific Coast Steamship Company, supra:

“The restraining order is a restraint of the same nature as an injunction, but the statute not only does not designate it as an injunction, but discriminates between it and an injuction. It is a restraint pending the consideration 'of the court as to whether the party is entitled to a preliminary injunction.”

The distinction is made clear and marked in a Nebraska case, State of Nebraska ex rel. Plattsmouth Telephone Co. v. Baker, 62 Neb. 840, 88 N. W. 124. The Nebraska statutes on injunc-. tions and restraining orders as above noted are precisely the same as the Oklahoma statutes on the same subjects', and the court, in drawing- the distinction between a restraining order and a temporary injunction under these statutes, speaks in such clear, comprehensive language as to leave no further doubt in the case at bar:

“By section 253, it is provided that: ‘If the court or judge deem it proper that the defendant, or any party to the suit, should be heard before granting the injunction, it may direct a reasonable notice to be given to such party to attend for such purpose at a specified time and place, and may, in the meantime, restrain such party.’ This section is not difficult of construction. When it is deemed proper that the defendants shall have notice of the application and be so heard before the injunction is granted, the judge may so direct and in' the meantime restrain the party from doing the things complained of. By referring to the order heretofore set out, it will be noticed that the judge found the petition sufficient to grant a temporary order of injunction, and on consideration of the petition alone the order was issued. The order does not by its terms indicate or contemplate that a further hearing on the application was to be had before the application was finally acted upon; and herein, in our judgment, lies the chief distinguishing characteristics between a ‘temporary order of injunction’ and a mere ‘restraining order.’ * * * The difference in the office and purposes of a temporary order of injunction and of a restraining order pending a hearing on the application for an injunction is well defined by statute, and there should be no room for doubt as to which is issued at the beginning of the action. If a further hearing is deemed advisable, this may very easily be expressed in unmistakable terms, and the temporary restraining order could only be regarded as issued for the purpose of restraint until the contemplated hearing was had. Each of the two writs has certain well-defined characteristics which distinguish the one from the other, and there ought to be no reason or opportunity for confusion as to which was intended to be issued.”

See, also, San Diego Water Co. v. Pacific Coast Steamship Co., supra; Houghton, Trustee, v. George B. Cortelyou, Postmaster General, (decided Jan. 20, 1908) 208 U. S. 149, 28 Sup. Ct. 234, 52 L. Ed.—

In addition to the observations above made showing the limitations placed by the courts upon such language as “until the further orders of this court.” etc., contained in restraining orders iri which this language is held equivalent to “in the meantime,'7 and in addition to the observation of the Nebraska court in which it holds that “the chief distinguishing* characteristics between a temporary order of injunction and a mere restraining order” depends upon the question of whether or not the order appears in itself to be a finality or whether there is to be a future hearing to determine whether .or not an injunction pendenre lite shall be issued, we call attention to the statement of the court in the order under consideration “that said petition and affidavit show the said plaintiff to be entitled to a temporary restraining order pending the hearing upon the application for a temporary injunction herein,” which in connection with the authorities above collated makes clear in our minds the correctness of our conclusion that the order issued was merely a restraining order and expired by limitation on the 22d day of April, 1905, the time when the parties were cited to appear and show cause, if any, why a temporary injunction should not issue against them.

The writ of habeas corpus is awarded, and the prisone-s ordered released from custody under the commitment by which they are now held, with their costs.

All the Justices concur.


author: Williams, C. J.

text:
      Ex parte Bailey.
    No. 42.
    Opinion Filed March 18, 1908.
    (94 Pac. 553.)
    JURISDICTION — Venue—No Prosecution before Statehood. An indictment for the crime of murder returned after the admission of the state into the Union for an offense committed under the territory of Oklahoma, where no prosecution whatever had been begun before said date, is cognizable in the district court of the state in the county in which the offense was committed.
    (Syllabus by the Court.)
    Application by Annie Bailey for writ of habeas corpus.

    Writ denied.
    On the 16th day or January, 1908, the relator herein was apprehended by G. W. Harrison, sheriff of Oklahoma county, upon a bench warrant issued by virtue of an indictment returned against her on the same date by the grand jury of Oklahoma county, state of Oklahoma, charging that on the 27th day of \ugust, A. D. 1907, the said relator, Annie Bailey, and Judge Peters, did then and there unlawfully, purposely, willfully, feloniously, and with malice aforethought, and without authority of law, and with a premeditated design then existing in the minds of. the said defendents, and each of them, to effect the death of one Lillian Ray, with certain drugs and deadly poisons, the kind and character of said poisons being unknown to the grand jury, then and there given and administered by the said defendants, Annie Bailey and Judge Peters, to the said Lillian Ray, make an assault upon the said Lillian Ray, with the unlawful and felonious intent on the part of the said defendants, and each of them, then and there to take the life of her, the said Lillian Ray, and they, the said defendants, Annie Bailey and Judge Peters, did then and there, by administering said poisons aforesaid, unlawfully, purposely, willfully, knowingly, and feloniously poison her, the said Lillian Ray, from the effects of said poisons she, the said Lillian Ray, did languish, and languishing, did then and there die, on the 27th day of August, 1907, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the then territory of' Oklahoma, now state of Oklahoma. The venue was also alleged to have been in said county.
    On the 2d day of January, 1908, the relator filed in this court her petition for writ of habeas corpus, alleging that she was unlawfully restrained by said sheriff of her liberty; further alleging that the offense for which she stood indicted was committed, if at all, on the 27th day of August, 1907, in Oklahoma county, territory of Oklahoma; that no affidavit, information, indictment, warrant, or process of any character whatsoever had been filed or 'issued against her or any other person charging her or them with the commission of such offense prior to the returning into said district court of said Oklahoma county said indictment; that no rights, actions, suits, proceedings, contracts, or claims existed or were pending up to the time of the returning into court of said indictment whereby or whereunder this said defendant was or could of right be charged with said offense; further alleging that the government of the United States of America had not given its consent to the state of Oklahoma or any consent whereby or .whereunder she could be indicted or prosecuted by and under the authority of the state of Oklahoma for the said act, if committed, and, further, that the said state of Oklahoma had not consented to receive and had not accepted or assumed the jurisdiction or right to so prosecute her for such acts as alleged in said indictment, the same being committed under the jurisdiction of the laws of the United States and of the territory of Oklahoma, and, further, that the grand jury of said county, state, and district had no jurisdiction to prosecute said action nor to investigate the said acts or return and present an indictment therefor.
    A writ of habeas corpus was properly issued on said petition on the 22d day of January, A. D. 1908, and made returnable on the 25th day of said month, and service, on said writ being acknowledged and accepted by the said G. W. Garrison as sheriff of said court on the 23d day of January, 1908, and the said sheriff made return showing that he held said relator in his custody as such sheriff by virtue of a bench warrant issued on said indictment hereinbefore referred to and detained her in the jail of said county under a commitment issued by said court. The relator demurred to said return.

      H. L. Bolen and Fulton, Jenkins & Spencer, for relator.

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

(after stating the facts as above). We have decided at this term of court in the case of Higgins v. Brown, reported in this volume, 94 Pac. 703, that section 20 of the enabling act (34 Stat. pt. 1, p. 277, c. 3325), as amended March 4, 1907 (34 Stat. p. 287, c. 2911), having been concurred in by virtue of the provisions contained in' sections 27 and 28 of the Schedule of the Constitution, vested jurisdiction of all criminal cases, not of a federal character, pending at the time of the admission of the state into the Union in the territorial courts of Oklahoma and in the United States courts in the Indian Territory, in the state courts of Oklahoma. Now, the question is presented as to whether or not a prosecution for a criminal offense committed in that part of the state formerly known as Oklahoma Territory prior to the admission of the state into the Union, where no prosecution whatever had been begun thereon, not even a complaint or information having been filed against the accused prior to said date, can be instituted in the state courts afterwards, and prosecuted to a final judgment.

Section 1 of the Schedule of the Constitution provides that “no existing rights, actions, suits, proceedings, contracts, or claims shall be affected by the change in the forms of government, but all shall continue as if no change in the forms of government had taken place.” Section 2 of the Schedule, supra, further provides “that all laws in force in the territory of Oklahoma at the time of the admission of the state into the Union, which are not. repugnant to this constitution, and which are not locally inapplicable, shall be extended to and remain in force in the State of Oklahoma until they expire by their own limitation or are altered or repealed by law.” As was stated in the case of Higgins v. Brown, supra, into every Constitution of the states admitted into the Union since 1791 similar provisions to those of sections 1 and 2 of the Schedule, supra, have been incorporated without any concurrence of the federal government, except by implication by acts of Congress, there being no prior enabling act admitting such state or states into the Union, or 'by express or reasonable implication in the enabling act, offenses, not of a federal character, committed under the territorial government heretofore have been originally instituted after the admission of the state into the Union, and prosecuted to a final determination in the state courts..

The states of Nevada, Colorado, Montana, North Dakota, South Dakota, Washington, and Utah were admitted under enabling acts similar to that of -Oklahoma, and wherein no express provision was made for nonpending cases; but in their respective Constitutions practically the same language as that in the Constitution of this state is used for the continuance of rights, actions, and prosecutions just as if there had been no change in the form of government from a territory to a state. Sections 1 and 2 of the Schedule of the Constitution of Washington are almost identically, word for word, the same as sections 1 and 2 of the Schedule of the Constitution of Oklahoma. In the former state offenses not of a federal character committed prior to the admission of the state first instituted after such time were prosecuted to final determination in the state courts as successors of the territorial courts. State v. Stowe, 3 Wash. St. 206, 28 Pac. 337, 14 L. R. A. 609; Lybarger v. State, 2 Wash. St. 553, 27 Pac. 449 1020; State v. Freidrich, 4 Wash. 206, 29 Pac. 1055, 30 Pac. 328, 31 Pac. 332; Freidrich v. Territory, 2 Wash. St. 358, 26 Pac. 976; Ex parte Freidrich, 149 U. S. 79, 13 Sup. Ct. 793, 37 L. Ed. 653; Way v. Woolery, 6 Wash. 158, 32 Pac. 1082; Foster v. Territory, 1 Wash. St. 412, 25 Pac. 459. States with similar enabling acts and substantially like provisions in their Constitution have prosecuted such offenses to final determination in their judicial tribunals. Wilson v. People, 3 Colo. 325; Packer v. People, 8 Colo. 362, 8 Pac. 564; State v. Carrington, 15 Utah 488, 50 Pac. 526: Higgins v. Brown et al., supra. The word “right” is defined in Webster’s International Dictionary as “that which one has a legal or social claim to do or exact; legal power; authority, as a sheriff has a right to arrest a criminal; that which justly belongs to one; that which one has a claim to possess or own; the interest or share which anyone has in a piece o’f property; title; claim; interest; ownership.” The same authority defines “action” as “a suit or process by which a demand is made of a right in a court of justice; in a broad sense a judicial proceeding for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense; a right of action, as the law gives an ‘action’ for every claim.”

It will be observed that the Supreme Court of the United States in Benner v. Porter, 9 How. (U. S.) 247, 13 L. Ed. 119, stresses the fact that the acts of Congress in the several instances of the admission of a state provide for the transfer of the federal causes to the district court, as in the case of Florida, nothing being said at the time in respect to those belonging to state authority, and the court added that such an omission “may very well imply an assent to the transfer of them by the state to the appropriate tribunal” — and adding that “even the omission on the part of Congress to interfere at all in the matter may be subject to a like implication; and a subsequent assent would doubtless operate upon past acts of transfer by the state authority.” Mr. Justice Nelson, speaking for the court , says:

“We have said that the assent of Congress was essential to the authorized transfer of the records of the territorial courts, in suits pending at the time of the change of government, to the custody of state tribunals. It is proper to add, to avoid misconstruction, that we do not mean thereby to imply or express any opinion on the question whether or not, without such assent, the state judicatures would acquire such jurisdiction. That is altogether -a different question. And, besides, the acts of Congress that have been passed in several instances, on the admission of a state, providing for the transfer of federal causes to the district court, as in the case of the admission of Florida, already referred to, and saying nothing at the time in respect to those belonging to state authority, may very well imply an assent to the transfer of them by the state to the appropriate tribunal. Even the omission on the part of Congress to interfere at all in the matter may be subject to a like implication; and a subsequent assent would, doubtless, operate upon past acts of transfer by the state authority.”

In Re Hastings v. Johnson, 2 Nev. 190, the court in referring to the foregoing excerpt from the case of Benner v. Porter, supra, said:

“Now, the Constitution of Nevada provides for the transfer of all pending cases from the territorial to the state courts. Congress receives that state into the Union, and admits her representatives under said constitution without objection. Congress makes no provision for these pending causes, nor any provision for the records of the late territorial courts. Here it appears to us is such tacit assent to the action of the state authorities as the court seems to intimate would be sufficient. It is true the records of the late territorial courts belong to the general government. Congress has the power to do what it pleases with them. It might order them to be removed to Washington City. This might create trouble and inconvenience; but we do not think it affects the question of power. The state may, as long as the records of the. territorial courts are within her territory and control, use those records as the foundation of civil proceedings to determine the rights of the citizens of its own courts. If Congress should remove these records or restrain their use by the state courts, some law to substitute copies, or some other remedial statute, would have to be passed by the state courts.”

In Re Inerarity, Adm’r v. Curtis and Griswold, Trustees, 4 Fla. 183, the court says:

“There is, we think, much force in this view of the question as to causes pending of which the courts of the United States have not exclusive jurisdiction, or cannot, under the Constitution and laws of the United States, take jurisdiction at all; and where, as in the case of Florida, the act of February 22, 1847 (9 Stat. p. 28, c. 17), provides for the transfer of the records and proceedings of certain classes of cases, saying nothing about other classes of which the state courts could take jurisdiction, the inference is. irresistible that Congress intended that the state authorities should assume jurisdiction over the latter, or if they had already,assumed it, the omission may well be considered as a tacit acquiescence in, and a ratification of, the authority thus claimed and exercised, and in view of the difficulties and confusion which would otherwise arise, in case of a hasty or improvident assumption of authority over the subject by the new state, we should be so inclined to consider the question. Concurring as we do in the opinion expressed by the Supreme Court of the United States in the cases referred to, we feel no hesitation in declaring that the courts of the territory of Florida were courts of the United States, and the records of said courts the records of that government; that the state authorities had no just right to assume the exercise of any authority of jurisdiction over them, except so far as the government of the United States, by express authority of just implication, shall accord the power to do so. So far as Congress, by the act of February 22, 1847, claimed to exercise jurisdiction over certain classes of records and pending causes, it is in our opinion the exercise of a rightful power, and the courts to which the jurisdiction and authority over them is granted are entitled to the cus ■ tody, and, so far as Congress has not claimed these records, b may be considered as the sanction of the general government to the exercise of jurisdiction by the state authorities over' the subject.’

In Re Carter v. Bennett, 4 Fla. 331, the court says:

“We have shown that, so far'as the state Legislature was competent to give it, the circuit court had full authority to hear and determine the case. Had it the sanction of Congress, which we have admitted was necessary to the legal transfer of the records and proceedigs therein? The act of Congress of February 22, 1847, was designated to transfer to the United States District Court organized in Florida all such records of the late territorial courts as belonged appropriately to that court. A careful specific enumeration was made of all the classes of cases so as to be transferred as we have already mentioned. It was made the duty of the district judge to take the necessary steps to get possession of these specific records from the clerks of the old courts, or persons or officers having them in their possession, these expressions, ‘other officers or persons,’ pointing obviously to the clerks of the state courts, who had in fact succeeded to the custody of the papers. This precise enumeration of cases to be transferred from the state courts leads irresistibly to the inference that Congress acquiesced in the retention by the state courts of all the other cases and the papers belonging to them. The act of the Legislature providing for the transfer of all these cases not thus enumerated had been passed more than a year and a half, and the state courts, under .authority of that law, had possessed themselves of them, and had been adjudicating them for nearly the same period. It is impossible to avoid the conclusion that this act of the Legislature and the action of the courts under it received the sanction of Congress in the act of 1847,30 far as they were not in conflict with that act. Besides this, Florida has followed many an elder sister into the Union, and the same provisions had been repeatedly made for the transfer of federal causes to the district courts, accompanied by long acquiescence in the assumption by the courts of the new states of the jurisdiction over causes not federal. The clearness and force of this inferential sanction of Congress is fully recognized both by the Supreme Court of the United States and by the Supreme Court of this state... *.. *.. * Even the omission on the part of Congress to interfere at all in the matter may be subject to a like implication, and a subsequent assent would doubtless operate upon past acts of transfer by the state authority.”

Section 4 of the enabling act, as approved June 16, 1906, (Stat. at Large U. S. 1905-06, pt. 1, p. 271, c. 3335), provides as follows:

“And if the Constitution and government of said proposed state are republican in form, and if the provisions of this act have been complied with in the formation thereof, it shall be the duty of the President of the United States, within twenty days from the receipt of the certificate of the results of said election and the statement of the votes cast thereon and a copy of said Constitution, articles, propositions and ordinances, to issue his proclamation announcing the result of said election; and thereupon the proposed state of Oklahoma shall be deemed admitted by Congress into the Union, under and by virtue of this act, on an equal footing with the original states.”

The only limitation is that the Constitution and state government shall be “republican in form” and comply with the provisions of said act. All other provisions which the constitutional convention had the power to insert by reasonable implication are permitted and concurred in, the act of the President consummating the same.

We conclude that the district court of Oklahoma county has jurisdiction of -this offense and-the power to prosecute it to a final determination. The relator is remanded to the custody of the respondent.

Writ of habeas corpus is denied.

All the Justices concur.


text:
      Ex parte Brown.
    No. 44.
    Opinion Filed March 18, 1908.
    (94 Pac. 556.)
    JURISDICTION — Venue—No Prosecution before Statehood. Where an indictment for the crime of assault with intent to kill with a deadly weapon was returned after the admission. of the state into the Union for an offense committed under the territory of Oklahoma, where no prosecution had been begun before said date, it is cognizable in the district court of the state in the county in which the offense was committed.
    (Syllabus by the Court.)
    Application by Ira Brown for writ of habeas corpus.

    Denied.

      Thos. H. Doyle, for relator.

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

In the Month of December, 1907, after the admission of the state into the Union, a grand jury of Kay county, state of Oklahoma, formerly a county under the territory of Oklahoma, returned into the district court thereof an indictment charging relator with the crime of asault with intent to kill by means of a deadly weapon, alleging that said crime was committed under the territory of Oklahoma and prior to the admission of the state into the Union, laying the venue in Kay county, said indictment being in proper form. Thereafter said relator was duly arraigned and tried before a jury of said court, and a verdict of guilty returned as charged in said indictment, and sentence pronounced.

On the 22d day of January, 1908, said relator filed in this court his petition for writ of habeas corpus, alleging that he was unlawfully restrained by the sheriff of said county of his liberty, and, further that the offense for which he stood indicted was committed, if at all, under the territory of Oklahoma and prior to the admisión of said state into the Union, and that the government of the United States had not given its consent to the state of Oklahoma, or any consent, whereby Or whereunder he could be indicted or prosecuted under the authority of the said state for said offense if committed, and, further, that said state had not consented to receive and had not accepted or assumed the right to so prosecute him for such offense as alleged in said indictment. A writ of habeas corpus was issued out of this court on said date, returnable on the 25th day or said month, and the sheriff of said county made a return thereon showing that he held said relator in his custody as such sheriff by virtue of a commitment on said judgment and sentence issued by the district court of the state of Oklahoma for said county. The relator demurred to said return.

In the case of Ex parte Bailey (decided at this term of court and reported in this volume), 94 Pac. 553, it was held by this court that where an indictment for the crime of murder returned after the admission of the state into the Union for an offense committed under the territory of Oklahoma, where no prosecution whatever had been begun before said date, the district court of the state in the county in which the offense was committed had jurisdiction. That case controls this case.

The relator is remanded to the custody of the sheriff of Kay county, with instructions to carry out the sentence of said court. Writ of habeas corpus is denied.

All the Justices concur.


text:
      Ex parte Ellis.
    No. 22.
    Opinion Filed March 10, 1908.
    (94 Pac. 556.)
    JURISDICTION — Venue—Statehood—Transfer of Causes. An indictment for the crime of larceny *and receiving stolen property, returned by a grand jury of the Western district of the Indian Territory prior to the admission of said territory into the Union as a part of the state of Oklahoma charging that said offense had been committed within said district on the 13th day of November, A. D. 1907, is cognizable in the district court of the state in the county in which the offense was committed.
    (Syllabus by the Court.)
    Application of-L. L. Ellis for writ of habeas corpus.

    Writ denied.
    On the 15th day of November, A. D. 1907, just prior to the admission of the state into the Union, the grand jtiry for the Western District of the Indian Territory returned an indictment into the United States court in said district at Muskogee against the relator, charging him with having committed the crime of larceny and receiving stolen property in said district on the, 13th day of said month. On the same date relator -was apprehended by virtue of a bench warrant issued on said indictment, and incarcerated in the federal jail at Muskogee. And thereafter, on the 3rd day of December, A. D. 1908, the relator made application for a writ of habeas corpus before the judge of the district Court of the United States for the Eastern District of the state of Oklahoma, at Muskogee. Said relator on the 4th day of December, 1907, was brought before said judge by the marshal of sid district , and as a return to said writ showed that he held the relator by virtue of a commitment duly issued on said indictment. Said judge held that the United States court for said district (1) had no jurisdiction to finally determine said cause; (2) that relator was charged with a crime, and should not be released; (3) that the district court for the county of Muskogee of the Third judicial district of the state of Oklahoma had jurisdiction to hear and try and finally determine the charge against relator; (4) that-the marshal should deliver him to said district trial court, etc.

      On the 5th day of said month relator was delivered to the sheriff of said county, and on the same date his petition for writ of habeas corpus was filed with said state court praying that, if said state court should take jurisdiction, bail should be allowed, but, if said court should not take jurisdiction for such purpose, it should direct the sheriff of said county to release the prisoner. After hearing said petition, said court entered an order refusing bail, and dismissed said petition, and refused to order his release. To all of which relator excepted.
    Thereafter, on the 17th day of December, A. D. 1907, said relator filed application in this court for writ of habeas corpus, at the same time praying for a writ of certorari directing the clerk of said district court for Muskogee cojunty to certify up to this court the record of said proceedings. On January 2, 1908, the clerk of said county having duly certified up the record of said proceedings, and the sheriff making return to said writ to the effect that he held said prisoner under said indictment by virtue of an order from the judge of the United States District Court for the Eastern District of Oklahoma, the relator demurred to said return.

      Powell & Parks, for relator.

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

(after stating the facts above.) This case is controlled by the decision in the case of Higgins v. Brown (decided at this term of court and reported in this volume) 94 Pac. 703, wherein it is held that an offense committed within the jurisdiction of the United States court of the Indian Territory, not of a federal character, prior to the admission of the state into the Union, and pending in such court at said time, is cognizable in the district court of the state as successor to such court, in the county in which the offense was committed. The district court of the county of the state in which such offense was committed has jurisdiction of this case. The offense charged being a bailable one, the relator is entitled to be discharged on reasonable bail.

The writ for the discharge of the prisoner is denied. However, if the court below fails to take jurisdiction, and enter an order allowing reasonable bail, after being advised of our conclusions, upon further application an order will be entered in this court allowing relator to be discharged upon bail in a reasonable amount.

All the Justices concur.


author: Kane, J.

text:
      Ex parte Stevenson.
    No. 73.
    Opinion Filed March 25, 1908.
    (94 Pac. 1071.)
    1. JUDGMENT — Res Judicata — Burden of Proof. The burden of proof rests upon a party who alleges a former adjudication.
    2. SAME — Record—Evidence—Necessity. The record entry of a judgment is indispensable to prove the evidence of it when it is made the basis of a claim or defense in another court.
    3. HABEAS CORPUS — Hearing—Evidence—Insufficiency. Where a person in custody, alleges in his petition for writ of habeas corpus in the Súmeme Court, that another court of competent jurisdiction has made an order granting him bail after indictment for a capital offense, and the evidence on the hearing shows that no such order was ever entered 'of record in the office of the clerk of the court alleged to have granted the same, there is a failure of proof on the part of the petitioner to establish the existence of such order, and his application for the writ should be denied.
    (Syllabus by tire Court.)
    Application of James Stevenson for writ of habeas corpus.

    denied.

      Pruiett, Cardwell & Sniggs and Yerker E. Taylor, for petitioner.

      Charles West, Atty. Gen., W. C. Reeves, Asst. Atty. Gen., and R.' T. Jones, for the state.
   Kane, J.

This is an original proceeding for writ of habeas corpus brought by James Stevenson to secure his release from custody on .bail.

The petitioner urges two grounds on which he claims 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 £>f 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. The petition further alleges that, after the transition of said district court of the Southern district of the Indian Territory into the district court of the state of Oklahoma, the state court in said district refused to admit the petitioner to bail under the order issued by judge Townsend. The second ground alleged in the petition is to the effect that the petitionér 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 upon said application was had in the city of Norman, Cleveland county, on the 2nd day of January, 1908, when evidence was introduced on behalf of the petitioner and the state of Oklahoma; that, upon considering said testimony and evidence, the Honorable R. McMillan, judge of the said court, “committed your petitioner to the common jail of Cleveland county, to be held upon said indictment without bail.” The petition further alleges that said restraint is illegal, and that the petitioner is not guilty of the crime of murder, or any other crime, and that the proof of 'guilt is not evident, nor the presumption thereof great. The alleged order, as shown by a purported copy thereof attached to the petition, reads as follows:

“On. this 15th day of November, 1907, this cause comes on to be heard upon the application of the defendant for an allowance of bail herein, and after reading the petition, and being fully advised in the premises, the court is of the opinion that the presumption of the defendant’s guilt is not great and that the defendant is entitled to bail herein. It is therefore ordered, adjudged, and decreed by the court that the United States marshal for the Southern district of the Indian Territory do forthwith release the defendant herein upon his executing bond as required by the law in the sum of five thousand dollars.”

The contention of counsel for petitioner is that, “when a person charged with a capital offense has once been admitted to bail after indictment found, he shall not be subject to be again placed in custody for the same offense, except on surrender by his sureties,, whether the bail be granted on facts or on acount of ill health. In other words, when bail is once granted after indictment found, it is beyond the power of the state to rearrest for the same offense; the right to bail being res adjudicata.1’ There is no allegation in the petition that the petitioner has ever presented a bail bond in the sum of $5,000, to the proper officer, and demanded his' release, but that informality probably could be overlooked if the petitioner could have established by competent evidence that a judgment or order granting' bail had been duly and regularly rendered; thus properly presenting to this court the question of former adjudication. It was shown on the hearing of this application, by the certificate of C. T. Vernon, clerk of the state district court of Carter county, and the affidavit of W. S. Crockett, deputy clerk of the United States court for the Southern district of the Indian Territory, that no order granting bail was ever entered of record in the journal of either the United States court for the Southern district of the Indian Territory or the state district court of Carter County, Okla.

The necessity of entering judgments and the importance thereof is well stated in 1 Freeman on Judgments, 37:

“The promptings of the most ordinary prudence suggest that whatever in the affairs of men has been so involved in doubt and controversy as to require judicial investigation ought, when made certain by final determination, to be preserved so by some permanent and easily understood memorial. Hence all courts and all tribunals possessing judicial functions are required by the written or unwritten law, and often by both to reduce their decisions to writing in some book or record kept for that purpose. The requirement is believed to be of universal application.”

Judge Freeman in the same section, discussing the effect of non-entry, says:

“While the entry is not the judgment, its absence tends strongly to indicate that no judgment exists.”

In 1 Black on Judgments, § 106, the same rule is stated thus:

“The record entry of a judgment is indispensable to furnish the evidence of it, when it is made the basis of a claim or defense in another court.”

The authorities uniformly hold that “the burden of proof rests upon the party who alleges a former adjudication.” (1 Van Fleet’s Former Adjudication, § 274.) Franklin, C., in Dunning et al. v. Seward, 90 Ind. 63, discussing a question similar to the one involved here, says:

“The second specification of errors by Josiah and Mortimer Dunning was sustaining the demurrer to the third paragraph of their answer. This paragraph of the answer attempted to plead res adjudicata

The syllabus of the above case,paving relation to this particular point, holds that an answer averring a former division against the plaintiff, on a motion for the same relief in another case, and disclosing that there is no record of the decision, is bad on demurrer. The above case seems to be precisely in point herein, and supports the doctrine that where a person in custody alleges in his petition for a writ of habeas, corpus in the Supreme Court that another court' of competent jurisdiction has made an order granting him bail after indictment for a capital offense, and the evidence on the hearing shows that no such order was ever entered in the office of the clerk of the court alleged to have granted the same, there is a failure of proof on the part of the petition to establish the existence of such order, and his application for the writ should be denied. 1

In the record before us it would seem that the question of former adjudication was not raised in the application for writ of habeas corpus before Judge McMillan, but that the case was there presented upon the evidence, and Judge McMillan found against the petitioner. Under the common law administered in England, if one judge refused to discharge a prisoner on a writ of habeas corpus, he could apply to another, and so on, until he had taken the opinion of all the judges accessible. We do not want to be understood as adopting or rejecting the common-law rule or as passing upon the effect of the judgment of Judge McMillan as an estoppel to an original application for writ of habeas corpus before this court. It is true the same evidence that was presented to Judge McMillan is before us, as an exhibit to the petition, but still, “where a case had already been once heard upon a habeas corpus and the prisoner has been remanded, another court will not always deem it expedient to grant another writ and hear the case again on the same evidence.” (Church on Habeas Corpus, § 187.)

The writ of habeas corpus is denied, and the petitioner is remanded to the custody of the sheriff of Cleveland county, state of Oklahoma.

Williams, C. J., and Dunn, Hayes, and Turner, JJ., concur in the conclusion denying bail.


author: Turner, J.

text:
    Hubbard v. Territory.
    No. 1866,
    Okla. T.
    Opinion Filed April 14, 1908.
    (95 Pac. 217.)
    INDICTMENT AND INFORMATION — Amendment. An information charging defendant with imputing to a female a want of chastity, under an act approved March 13, 1905 (Sess. Laws 1905, p. 196, c. 13), cannot he so amended, after acquittal, as to charge defendant with lascivious language in a public place, under Wilson’s Rev. & Ann. St. Okla. 1903, sec. 1959, without being sworn to as provided in section 1883 of said statute.
    (Syllabus by the Court.)

      Error from Probate Court, Grant County; before A. C. Glenn,

      Judge.

    A. E. Hubbard was convicted of crime, and brings error.
    Reversed.
    On July 24, 1905, there was filed in this cause in the probate court of Grant county, Oklahoma Territory, the following information :
    “Territory of Oklahoma v. Bert Hubbard.
    “Information.
    “I, the undersigned, county attorney of said county, in the name, by the authority, and on behalf of the territory of Oklahoma, give information that on the 22d day of July, A. D. 1905, in said county of Grant and territory of Oklahoma, one Bert Hubbard did then and there unlawfully, willfully, falsely, maliciously, and wantonly impute to a certain female, then and there a resident of Oklahoma territory, a want of chastity, by the use of the following language, to wit: * * * (meaning Mona M. Godfrey) and he can’t help it’ — contrary to the form of the statute in such cases made and provided against the peace and dignity of the territory of Oklahoma.
    F. G. Walling, County Attorney.
    “Territory of Oklahoma, County of Grant — ss.:
    “I do solemnly swear that I have read the above and foregoing information, and the statements therein contained are true.
    “John Needles.
    “Subscribed and sworn to before me this 24th day of July, I905-
    “[Seal] A. C. Glenn,
    “I have examined the facts in this case and recommend that a warrant issue.
    “F. G. Walling, Co. Atty.”
    On the same day a warrant of arrest was duly issued for the defendant. On September 16, 1905, defendant appeared in court and waived arraignment and was released on bond. On November 15, 1905, he filed a demurrer to the information, which was overruled, to which he excepted, pleaded not guilty, waived a jurj and was tried by the court. Upon all the evidence submitted on both sides the court found the defendant not guilty of imputing a want of chastity to a female, as charged in the information, but found him guilty of using obscene language in a public place; and thereupon the court permitted the prosecution to amend the information to charge the offense of using obscene language in a public place by writing into the said information as filed the words: “Said language being uttered and made in a public place in said county, to wit in the town of Nashville, on the public streets of said town, in the presence of a great many persons” • — -to all of which amendment and alteration of the original information, and as to the finding defendant guilty of using obscene language in a public place, the said defendant objected and excepted, which objections and exceptions were overruled by the court. The defendant then asked to be discharged, which was by the court denied and refused, to which the defendant excepted. The court thereupon offered to permit said cause to be continued to give the defendant opportunity to offer further testimony, and to reopen the case and hear evidence on behalf of defendant in rebuttal of said charge, which defeudant said he did not desire to do, or have the cause reopened, or offer further testimony, but insisted on being discharged under the finding by the court. Thereafter defendant duly filed a motion for a new trial, which was overruled by the court, to which ruling defendant excepted, and filed his motion in arrest of judgment, which was overruled by the court, to which rilling defendant also duly excepted, whereupon the court sentenced him to serve a term of 10 days in the county jail and to pay a fine and the costs of this action, in all $90.05, to which the defendant objected and excepted, and has brought his case for a review to this court on petition in error and case- made.

      Sam P. Ridings, for plaintiff in error.

      Charles West, Atty. Gen., and W. C. Reeves, Asst. Atty. Gen., for the state. ' '
   Turner, J.

(after stating the facts as above). Plaintiff in error insists, among other assignments of error, that “the court erred in permitting defendant in error to amend the information after the case was closed and to charge another distinct offense.” The offense charged in the information, before amendment, is defined in an act approved March 13, 1905 (Sess. Laws 1905. p. 196, c. 13), which reads: Section 1:

“If any person shall orally or otherwise, falsely and maliciously or falsely and wantonly impute to any female in this tertitory, married or unmarried, a want of chastity, he shall be deemed guilty of slander, and upon conviction shall be fined not less than twenty-five dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than thirty days nor more than ninety days, or by both such fine and imprisonment.”

Said_information, as amended, charges a wholly different offense, which is defined in Wilson’s Rev. & Ann. St. Okla. 1903, § 1959, which reads: :

“If any person shall utter or speak any obscene or lascivious language or word in any public place, or in the presence of females, or in the presence of children under ten years of age, he shall be deemed guilty of a misdemeanor and upon conviction thereof before any justice of the peace of this territory, he shall be liable to a fine of not more than one hundred dollars, or imprisonment for not more than thirty days, or both, at the discretion of said justice.”

Under the very liberal practice laid down in section 1883 of said statutes, the trial court was authorized to permit the amendment complained of by defendant with that statute, which reads:

“All criminal actions prosecuted in the probate court shall be brought in the same manner as similar actions in the justice courts; or shall be upon information of the county attorney based upon a sworn complaint and shall be under his direction and control; and warrants shall issue the same as in the justice courts; Provided, if any complaint or information be adjudgecj defective or insufficient it may be amended to any extent and sworn to until it is sufficient, and if the evidence -fails to prove the crime charged, but tends to prove any other crime the information may be amended to charge the crime which the evidence tends to prove, and if that be a felony the trial shall be suspended and the accused shall be proceeded against by preliminary examination and bound over or discharged as the court shall deem just under the evidence. If the information or complaint be amended, the court shall see that the defendant is not prejudiced thereby and if justice requires it shall grant to the accused time to prepare his defense to the information or complaint as amended.”

But the court was not authorized to- permit said amendment unless the information was afterwards sworn to, as provided in that section. It appears from the record that the information, after amendment, was not sworn to or based upon any sworn statement whatever.

The conviction of this defendant under this amended information was therefore erroneous, and the judgment of the lower court must be reversed, and it is so ordered.

All the Justices concur.


text:
      Ex parte Buchanen.
    No. 27.
    Opinion Filed April 15, 1908.
    (194 Pac. 943.)
    JURISDICTION — Manslaughter—Offense Antedating Statehood. Where an indictment for the crime of manslaughter, 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 such date it is cognizable in the district court of the state in the county in which the offense was committed.
    (Syllabus by the Court.)
    Application by Frank Buchanen for writ of habeas corpus.

    Writ denied.
    The relator, Frank Buchanen, is charged with having killed, on the 8th day of October, 1907, near Braden, Le Flore county, Okla., then Indian Territory, one Wayne Noblin, in such a manner as to constitute manslaughter, by indictment returned on the 12th day of December, 1908, at the December term of the district court for the Fifth judicial district of the state, held in Le Flore county. It is further stipulated of record that on November 19, 1907, an information was filed by the county attorney of Le Flore county with the county judge of said county, and a warrant was thereupon issued for the arrest of relator, and on the 21st day of November, 1907, the relator was apprehended by virtue of said warrant, and on the 4th day of December, 1907, a preliminary hearing was had before said county judge, whereupon said relator was committed to jail to await the action of the grand jury; and the relator is now detained by said sheriff by virtue of a commitment issued by the district court of said county on said indictment.

      Day & Du Bois, for relator.

      Charles 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 the court in the case of Ex parte Bailey, reported in this volume, 94 Pac. 442, that an indictment for the crime of murder — an offense committed under the territory of Oklahoma — returned after the admission of the state into the Union, 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. The question is now presented whether or not a prosecution for the offense of manslaughter committed in that part of the state formerly known as the Indian Territory, where no prosecution whatever had been begun — not even a complaint or information having been filed against the accused — prior to the admission of the state into the Union, can be instituted in the state courts and prosecuted to final judgment thereafter. Section 20 of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 277) as amended March 4, 1907, (34 Stat. 1287, c. 2911) provides as follows:

“That all causes , proceedings, and matters, civil or criminal, pending in the district courts of Oklahoma Territory, or in the United States Courts in the Indian Territory, at the time said territories became a state, not transferred to the United States Circuit or District Courts in the state of Oklahoma, shall be proceeded with, held, and determined by the courts of said state, the successors of said district courts of the territory of Oklahoma and the United States Courts in the Indian Territory; with the right to prosecute appeals or writs of error to the supreme or appellate court of said state, and also with the same right to prosecute appeals or writs of error from final determination in such cases made by the supreme or appellate court of such state to the Supreme Court of the United States, as is provided by law for appeals and writs of error from 'the supreme or final appellate court of a state to the Supreme Court of the United States. All criminal cases pending in the United States Courts in the Indian Territory, not transferred to the United States Circuit or District Courts in the state of Oklahoma, shall he prosecuted to a final determination in the state courts of Oklahoma under the laws now in force in that territory.”

In the decision of this court in the case of Higgins v. Brown (decided at this term of court and reported in this volume), 94 Pac. 703, it was held said section, having been concurred in on the part of the state by virtue of provisions contained in sections 27 and 28 of the Schedule to the Constitution , vested jurisdiction in the proper state courts of all criminal cases, not of a federal character, pending at the time of the admission of the state into the Union in the territorial courts of Oklahoma and in the United States Courts in the Indian Territory, and in that same case it was held that if the crime of murder was committed in what was formerly the Indian Territory, not within a fort or arsenal or in such place in said territory over which jurisdiction would have been solely and exclusively within the jurisdiction of the United States, had it at that time been a state, such offense was cognizable in the state courts. To make such a construction as to necessitate the conclusion that the state courts would not have jurisdiction of such character of crimes, not of a federal nature or character, as might have been committed prior to statehood on the Indian Territory side, where no prosecution had been begun, would be tantamount to holding that it was the intention of Congress and of the constitutional convention that such crimes, not of a federal character, should not be prosecuted to a final judgment; for, although they had been defined as offenses by the laws in force in the Indian Territory, of the United States, they would not be cognizable within the federal courts after the admission of the state into the Union. Moore v. United States, 85 Fed. 465, 29 C. C. A. 269.

Section 1 of the Schedule to the Constitution provides:

“No existing rights, actions, suits, proceedings, contracts, or claims shall be affected by the change in the forms of the government, but all shall continue as if no change in the form of government had taken place. And all process which may have been issued previous to the admission of the state into the Union, under the authority of the territory of Oklahoma, or under authority of the laws in force in the Indian Territory, shall be as valid as if issued in the name of the state.”

When this provision is construed in the light of the provisions of section 20 of the enabling act, as amended by the act of March 4, 1907, we are aided in reaching an interpretation as to what was intended by said section 1, supra; and we conclude that said provision has the same effect as that contained in said section 20, supra, where it is stipulated that certain cases “shall be prosecuted to final determination in the state district courts of Oklahoma under the laws now in force in that territory.” In the case of Moore v. United States, 85 Fed. 468, 29 C. C. A. 272, supra, the court says:

“Its civil and political powers were transferred to other officers ; those of peculiarly internal character to officers of the new state; those which bore any relation of the national system of government, of which the state formed a part, to officers holding commissions under that system, and possessing only the powers derived from their commission. As one of the states of the Union, and in virtue of that character forming one of the districts of the United States, the district of Utah, and the Circuit Courts sitting in that district, would possess no peculiar jurisdiction or authority; one which did not appertain to other districts and the Circuit Courts having cognizance of matters within those districts.”

In the case of Shively v. Bowlby, 152 U. S. 1, 48, 14 Sup. Ct. 548, 566, 38 L. Ed. 331, the court says:

“By the Constitution, as is now well settled, the United States having rightfully acquired the territories, and being the only government which can impose laws on them, having the entire dominion and sovereignty, national and municipal, federal and state, over all the territories so long as they remain in the territorial condition,” etc. (See, also, Higgins v. Brown, ante, this volume, and authorities therein cited.)

It may be contended, however, that the people of the state, through their constitutional convention, could not provide for the continuance of laws enacted by Congress for the government of the Indian Territory for the purpose of prosecuting to final judgment existing rights and actions, etc., having arisen thereunder prior to the admission into the Union. In the Bailey Case, supra, it was held that the only limitation upon the action of the convention was that the state government should be republican in form and the provisions of the enabling act complied with; everything else, which the convention had the power and the right to insert by reasonable implication, being permitted, and afterwards concurred in through the action of the President in issuing the proclamation admitting the state into the Union. In the case of Ex parte Larkin, 1 Okla. 53, 25 Pac. 745, 11 L. R. A. 418, it was decided that it was within the power of the Legislature of the territory of Oklahoma to continue in force after the adjournment of the Legislature certain laws of Nebraska extended to said territory by act of Congress known as the “Organic Act” for said territory (Act. May 2, 1890, c. 182, § 11, 26 Stat. 81), until the adjournment of the first Legislature thereof. Afterwards, in the case of U. S. v. Pridgeon, 153 U. S. 54, 14 Sup. Ct. 746, 38 L. Ed. 631, the Larkin Case is cited with approval. In the Pridgeon Case the offense was committed prior to the adjournment of the first Legislature of said territory, and he was tried and convicted in the proper court of said territory after the adjournment of said Legislature. If the Legislature at its first session could by enactment provide for the continuing in force of said laws, why could not the constitutional convention in like manner continue in force laws that had been in almost practically the same manner extended in force in the Indian Territory by Congress, for the purpose of continuing prosecutions for the violation of said laws prior to the admission of the state into the Union? Benner v. Porter, 9 How. 235, 13 L. Ed. 120; U. S. v. Pridgeon, 153 U. S. 53, 54, 14 Sup. Ct. 746, 38 L. Ed. 633; Ex parte Larkin, 1 Okla. 53, 25 Pac. 745; U. S. v. Moore, 85 Fed. 465, 29 C. C. A. 269.

Whilst we do not readily reach these conclusions, yet we are clear that it was the intention of 'Congress, as well as the constitutional convention, that malefactors, who had committed serious and grave offenses against society prior to the admission of the state into the Union, when there had been no opportunity to lodge indictments against them ought not to go únwhipped of justice, and thereby the law not being vindicated after such infractions. Further, it is not clear in our minds that, if we are in error in our conclusions that the state district court has jurisdiction of such offense, that Congress can hereafter make provision for the final prosecution of such cases, still, in any event, such accused persons have the highest judicial tribunal of our Republic open to them in which to have determined whether or not they are unlawfully deprived of their liberty, and in the evént it were determined in that forum that this court has erred, the decision of such court would certainly be very persuasive with the Congress of the United States to cause it to take any possible action for the final prosecution of such offenses. And especially are we moved to take this course as it is a matter of record that the United States judge for the Eastern District of Oklahoma has ordered and directed that all prisoners in the custody of United States marshals for the several districts in the Indian Territory at the time of the admission of the state into the Union, charged with offenses not of a federal character, whether or not they were held by indictments or complaints filed with United States commissioners, be delivered over to the custody of the state authorities. It certainly will not be seriously contended that where a prisoner was being held by virtue of a commitment from the United States commissioner, he being apprehended by virtue of a warrant issued by such commissioner on a complaint filed before him, that such cause was pending at the time of the admission of the state into the Union in the United States court of the district in which said commissioner was located. Virgina v. Paul, 148 U. S. 107, 13 Sup. Ct. 536, 37 L. Ed. 386; Ex parte Johnson, 167 U. S. 120, 17 Sup. Ct. 735, 42 L. Ed. 103; State v. Arlin, 39 N. H. 179. To hold that the proper state court has no jurisdiction of such offenses is equivalent to opening the jail doors and turning loose dangerous felons upon society without a trial before a jury. We are constrained to adopt the reasoning that results in the proper state court having jurisdiction of such offenses, not being unmindful, however, of the rights and liberties of the accused. A speedy and fair trial is vouchsafed to every accused by the highest law of our land. By this chart, not only are the rights of the individual protected, but the interests of society are likewise safeguarded. Where the accused is afforded a speedy arid fair trial, with the presumption of innocence as a shield, before a jury of his peers, no one has just cause for complaint. There is nothing in our holding that militates against this principle. See Church on Habeas Corpus (2d Ed.) p. 123, § 84; In re Friedrich (C. C.) 51 Fed. 747; In re Wo Lee (C. C.) 26 Fed. 471; Spickler v. Block, 43 Fed. 653, 10 L. R. A. 446.

Writ of habeas corpus denied.

All the Justices concur.


text:
      Ex parte Patman.
    No. 106.
    Opinion Filed April 15, 1908.
    (95 Pac. 622.)
    1. HABEAS CORPUS — Object of Writ. The writ of habeas corpus is not designed to operate as a writ of error or certiorari, and does not have their effect. It deals with irregularities which render proceedings void.
    2. SAME — Procedure—Review of Facts. The court on habeas corpus will not, for the purpose of discharging the relator, consider the sufficiency of facts relied on as evidencing that he is being prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may have testified or produced evidence in another court.
    3. SAME. The writ of habeas corpus cannot be resorted to for the purpose of discharging the relator on a plea set up in the petition praying for such ; writ that by indictment in a court of competent jurisdiction he is being prosecuted or subjected to a penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may have so testified or produced 'evidence in such court.
    (Syllabus ,vv the Court.)
    Application of Thomas Patman for writ of habeas corpus.

    Writ denied.
    Prior to the admission of the state of Oklahoma into the Union the relator, Thomas Patman, was jointly indicted with Ben Titsworth and Eugene Titsworth by a grand jury in the United States Court for the Western District of the Indian Territory, at Muskogee, charging them with the crime of murder. Relator in his petition in this action states that he had knowledge and was in possession of facts that tended to establish the guilt of said Eugene F. Titsworth of the crime of murder of which he, the said Eugene Titsworth, was indicted, and the petitioner was not excused by the said state of Oklahoma from giving such facts of which he was in possession and acknowledged to against said Eugene Titsworth to his attorneys at the trial of said Eugene Titsworth, but was called upon by the state of Oklahoma to testify in said cau'se on the part of the state of Oklahoma, and did so testify, and that the evidence given and testified to by the said petitioner did tend to incriminate and did incriminate this petitioner under the laws of the state of Oklahoma and under the Constitution of said state of Oklahoma, and that this petitioner is being held in the United States jail at Muskogee by the respondent, R. M. Ramsey, as sheriff of Muskogee county, state of Oklahoma, and is being prosecuted and subjected to the laws of the state of Oklahoma on account of the matters and things about which the prisoner testified to and gave evidence of, and is now, in consequence of the charge of this petitioner, deprived of his liberty by the said R. M. Ramsey, sheriff of Muskogee county, state of Oklahoma, in violation of the provisions of the Constitution of the state of Oklahoma under article 2, § 27, and under the act of .Congress of February 11, 1893, c. 83, 27 Stat. 443 (U .S. Comp. St. 1901, p. 3173). The relator therein prays for the issuance of a writ of habeas corpus directing and commanding the said sheriff to bring the body of said petitioner before this court that the matters and things therein alleged may be duly; inquired into, and that after due examination of same he be discharged from jail and given his liberty.
    Said petition was duly filed with this court on March 11, 1908, and writ of habeas corpus was issued on the 20th day of March A. D. 1908, returnable on the 28th day of March, A. D. 1908. On said date the respondent duly made his return which was as follows:
    “(1) That he has the body of said Thomas Patman in his custody in his official capacity as such sheriff. (2) That he holds said Thomas Patman under and by virtue of an order of commitment of the district court of Muskogee county, state of Oklahoma, same being in conformity to law in all respects; said relator having been transferred to him as such sheriff by the United States marshal of the Eastern district of the state of Oklahoma; said relator having been held by the United States marshal under and by virtue of an order of commitment issued in a certain criminal prosecution by indictment for the crime of murder alleged to have been committed in the Western District of the Indian Territory prior' to the admission of Oklahoma into the Union and which said prosecution by indictment was pending in the United States Court for the Western District of the Indian Territory upon November 16, 1907. (3) Copy of the order showing the return of the indictment against the said defendant in the United States Court for the Western District of the Indian Territory on the 23rd day of October, A. D. 1907, showing that the said relator was indicted separate and alone of the crime of murder and not jointly with Eugene Titsworth and Ben Titsworth, charging said Thomas Patman with having, on the 5th day of July, 1907, in the Western District-of the Indian Territory, murdered one Sam Roberts, and showing that said relator was held without bail, and that on the 24th day of'February, A. D. 1908, he was delivered by the said United States marshal for said district to the respondent, as sheriff o E Muskogee county.”

      Chas. E. Bagg and Williams A Williams, for relator.

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

(after stating the'facts as above). The relator being held in custody by the sheriff of Muskogee county to answer an indictment pending and undetermined in the district court of said county for the crime of murder, a writ of habeas corpus is prayed for by relator, not that he may be discharged on bail but it is claimed by him that he is entitled to an absolute and unconditional discharge from custody.

In the case of Perry v. State, 41 Tex. 489, the court says:

“The right to discharge is based upon the fact of appellant having previously been convicted in said court on another indictment for theft of a steer, found at the same term of the court as the indictments under which he is now held in custody. All of said indictments, it is insisted, having been found on the same evidence, and on account of the same transaction, are therefore claimed to be for one and the same supposed offense. An application for habeas corptis for the purpose and under the circumstances for which this was made is certainly novel and without precedent in the courts of this state. It would seem to have long since been much too well established by the common law as well as our statutes that an indictment not void upon its face, regularly returned to and pending in a court having jurisdiction thereof, could only be disposed of by some appropriate proceeding in such court for an experiment such as the present: The practice at common law in the' court of King’s Bench is thus stated in Wilmont’s Opinion, 106 (Hurd on Habeas Corpus, 331) : ‘In imprisonment for criminal offenses the court can act upon it only in one of three manners: (1) If it appear clearly that the fact for which the party is committed is no crime, or that it is a crime, but he is committed for it by a person who has no jurisdiction, the court discharges. (2) If doubtful whether a crime or not, or whether the party be committed by a competent jurisdiction, or if it appears to be a crime, but a bailable one, the court bails him. (3) If an offense, not bailable, and committed by a competent jurisdiction, the court remands or commits him. It is certainly essential-to the proper discharge of its duties, and the due and sufficient administration of the law that whenever a court assumed to act in a matter, and over parties within its jurisdiction, it is its right and duty to proceed to its final determination without interference from any other tribunal.’ The writ of habeas corpus was not granted to operate as a writ of error or certiorari, and does not have their force and effect.. It does not deal with error or irregularities which render proceedings voidable, merely, but such only as render them absolutely void.”

In the case of Ex parte Crofford, 39 Tex. Cr. R. 548, 47 S. W. 533, the court says:

“Relator was placed upon trial before a jury in the district court of Montague county on the charge of murder. The jury retired to consider their verdict on the 10th of August On the morning of the 12th, in the absence of the defendant, the jury was brought into court and discharged from further consideration of the case. It is shown by the judgment of the court that the court adjudicated the question as to the probability of their agreeing to a verdict. The defendant was not present, and not consulted in regard to the discharge of the jury. In fact he was in jail at the time. He resorted to the writ of habeas corpus for the purpose of seeking his discharge on the ground that he had been placed in jeopardy and could not be tried again; and this is the only ground alleged by the relator, and upon the hearing of the writ remanded relator to custody, and this appeal is prosecuted therefrom. This is not a novel case in Texas. Since the case of Perry v. State, 41 Tex. 488, the decisions have been uniform that the writ of habeas corpus cannot be resorted to for the purpose of discharging an applicant on a plea of former jeopardy. See, also, Darrah v. Westerlage, 44 Tex. 388; Ex parte Scwartz, 2 Tex. App. 74; Griffin v. State, 5 Tex. App. 457.”

In this case, the relator being held by virtue of an indictment pending in a court of competent jurisdiction, and over parties within its jurisdiction, it is certainly its right and duty to proceed to its final determination without interference from any other tribunal. In the case of the United States v. Armour & Co. (D. C.) 142 Fed. 818, Humphrey, district judge, says: “* * * That the officer or agent of the corporation, if the facts bring him within the purview of the law, may plead such immunity.” In the case of Hale v. Hinkle, 201 U. S. 68, 26 Sup. Ct. 376, 50 L. Ed. 663, the Supreme Court of the United States says: “The suggestion that a person who has testified compulsorily before a grand jury may not be able, if subsequently indicted for some matter concerning which he testified, to procure the evidence necessary to maintain his plea, is more fanciful than real.” Where shall the party charged with a crime by indictment plead such immunity? Certainly not in another court in a proceeding for writ of habeas corpus, but in the court where the indictment is pending, just like any other plea in abatement or bar may be made and entertained.

Writ of habeas corpus denied.

All the Justices concur.