author: BICIIABDSON, Judge.

text:
    D. R. M. JONES v. STATE.
    No. A-651.
    Opinion Filed January 5, 1911.
    APPEAL — Time of Taking — Extension. Under section 6948 of Snyd'er’s Comp. L. Okla., an attempt on the part of. the trial judge or court to extend the time for taking an appeal in a misdemeanor case so as to permit the filing of the case in the appellate court after the expiration of 120 days from the date of the judgment ‘below, is inoperative and void.
    (Syllabus by the ’Court.)

      Appeal from Jackson County Court; W. T. McConnell, Judge.

    D. B. M. Jones was convicted of violating the prohibition law and sentenced to pay a fine of $500 and to be imprisoned in the county jail for a term of 90 days, and he appeals.
    Appeal dismissed.

      Johnson, Morrill & Riegel, for plaintiff in error.

      Fred S. Caldwell, for the ¿State.
   BICIIABDSON, Judge.

The judgment appealed from in this case was rendered on September 15, 1909, at which time the trial court made an order allowing plaintiff in error 120 days to make and serve a case, and allowing the county attorney 10 dajrs in which to suggest amendments, and requiring that the case be settled upon five days’ notice and 'be filed in the Criminal Court of Appeals within 20 days after settlement and signing. The case-made was filed ‘in this court on March 12, 1910.

Section 6948 of Snyder’s Comp. L. provides that in misdemeanor eases the appeal must be taken within 60 days after judgment is rendered, except that the trial court or judge, for good cause shown, may extend the time for the taking of such appeal not exceeding sixty days. Under th'is provision the trial judge cannot extend the time more than sixty days, and any attempt on his part to extend the time for filing the petition in error and case-made in this court, so as to permit its being filed herein after the expiration of 120 days from the date of the rendition of judgment, is inoperative and void. In this case the petition in error and case-made were not filed in this court until March 12, 1910, 178 days after the rendition of judgment. The state has filed a motion to dismiss the appeal on that account and the motion will be sustained.

It is therefore ordered that the appeal herein be and the same is hereby dismissed, and that a mandate issue to the County Court of Jackson County directing said court to enforce its judgment and sentence in this case.

FURMAN, Presiding Judge, and DOYLE, Judge, concur.


source: Caselaw Access Project

author: DOYLE, Judge.

license: Public Domain

text:
      In re T. H. SIMMONS.
    No. A-975.
    Opinion Filed January 9, 1911.
    1. MUNICIPAL CORPORATIONS — Charters—Ordinances—Constitutional Powers. Under the constitutional provision, sec. 3, art. 18, Const., providing- tahat: “Any city containing a population of more than two thousand inhabitants may frame a charter for its own government, consistent with and subject to the Constitution ’and laws of this state” — a city adopting ,a charter is accorded full power of local self-government, and as such municipal corporation, under its charter, it has power to enact, ordain and enforce ordinances for the purpose of protecting the public peace, order, health, morals and safety of the inhabitants, even though general statutes exist relating to the same subjects.
    2. SAME — Intoxicating Liquors — Prohibiting Sale. The adoption of the prohibition ordinance by the people, and the enactment of the prohibition law, does not prevent cities of the first class from enacting" ordinances prohibiting the sale of intoxicating liquor within the limits of such cities.
    3. CRIMINAL LAW — Prosecution by Either State or City. The same act committed b3' a person may' constitute a crime against the state law and a different petty offense against the city ordinance, and the two offenses being different, the offender may be proceeded against under either the city ordinance or the state law, or both.
    4. SAME — Intoxicating Liquors — Offenses. A conviction under an ordinance of a city of the first class for being in possession of intoxicating liquors with intent there to barter, sell, give away or otherwise furnish contrary to law is not a bar to a prosecution for the same act under the prohibitory law of the state.
    5. JURY — Right to Trial by Jury — Constitutional Law. The Constitutional provision (Bill .of Rights, sec. 19) that “The right of trial by jury shall be and remain inviolate” was adopted with reference to the procedure theretofore generally existing, and if, in a given class of offenses, trials without a jury were .the prevailing rule, this rule is not changed by this constitutional provision.
    6. SAME — Municipal Courts — Jury Trial on Appeal! Where a statute authorizes a trial before a municipal court without a jury for a violation of a city ordinance, and at the same time secures to the defendant an appeal therefrom, hampered by no unreasonable restrictions, to an appellate court where he has a right to a trial by jury, such summary proceeding is not in conflict with the constitutional provisions: “The right of trial by jury shall be and remain inviolate” (Bill of Rights, sec. 19); “In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime ¿hall have been committed.” (Bill of 'Rights sec. 20.)
    7. CRIMINAL LAW — Municipal Courts — Nature of Prosecution. A prosecution in a municipal court, for a'violation of a municipal ordinance which prohibits an act which is also an offense under the general criminal law of the state is a quasi criminal proceeding.
    8. COURTS — Municipal Courts — Style of Prosecution. A prosecution in a municipal court for a violation of a city ordinance may be in the name of the city.
    (Syllabus by the Court.)

      Original Proceeding by Habeas Corpus.

    Application by T. H. Simmons for writ of habeas corpus.

    Writ denied.
    Tlie petitioner, T. H. Simmons, on December 16, 1910, filed in this court a petition, which, omitting the title and verification, reads as follows:
    “Your petitioner, T. H. Simmons, represents and states to this Honorable Court that he is restrained of his liberty, and is unlawfully imprisoned and restrained at Tulsa, in the county of Tulsa, in the State of Oklahoma, by C. W. Conneely as chief of police of the' City of Tulsa. The cause of said restraint, according to the best of the knowledge - and belief of your petitioner, is as follows: On the 14th day of December, 1910, one Ben. F. Latham made complaint before 0. A. Houston, as judge of the municipal court of the City of Tulsa, Oklahoma, charging your petitioner with the offense of violating section 1 of ordinance No. 756 of the City of Tulsa, Oklahoma. A certified copy of said complaint is filed herewith, attached hereto and made a part hereof, marked for identification 'Exhibit A’. A certified copy of said ordinance No. 756 of the City of Tulsa, Oklahoma, is attached hereto and made a part hereof, and filed herewith, marked for identification 'Exhibit Bd That said purported ordinance was passed and adopted by the board of commissioners of the city of Tulsa on the 26th day .of July, 1910, and published as required by law in the issues of July 27th, 28th and 29th, 1910, in the Tulsa Daily Democrat; that on the 22d day of November, 1910, the board of commissioners of the city of Tulsa, Oklahoma, passed and adopted d purported ordinance No. 822, which said purported ordinance .was published in the Tulsa Daily Democrat as .required by law in the issues of November 28th, ,29th, 30th, 1910. A certified copy of said purported ordinance is attached hereto and made a pari hereof, and marked for identification ‘Exhibit C.’
    “That the alleged violation of section 1 of ordinance No. 756 of the City of Tulsa is charged in said complaint to have been committed in the City ■ of Tulsa, Oklahoma, on the 12th day of December, 1910; that on the 14th day of December, 1910, your petitioner was placed upon trial in the municipal court of the City' of Tulsa, Oklahoma, and- demurred to said complaint on various and sundry grounds, among which was that the said court had no jurisdiction to try your petitioner -on said charge, and that the aforesaid ordinances .of the City of Tulsa, Oklahoma, were void-because the acts alleged to have constituted said offense are made a public offense under the statutes of the State of Oklahoma, and the Constitution of Oklahoma, and jurisdiction to try such offense conferred exclusively, upon the. county court of' Tulsa County, Oklahoma, and because the board of commissioners of the city of Tulsa, Oklahoma, were without authority to pass, approve or adopt said ordinances, or either of them; that the municipal court aforesaid overruled said demurrer, and required your petitioner to go to trial in said court upon said complaint; that thereupon vour petitioner demanded a trial by jury,-and the said court refused your petitioner a jury trial on said charge; that thereupon a trial was had in said court upon said complaint, and your petitioner found guilty by the court, and his punishment fixed at a fine of $100.00 and ten days’ imprisonment in the city jail of, the city of Tulsa, Oklahoma, and the court ordered commitment to issue for your petitioner until said fine was paid and said imprisonment was satisfied. A certified copy of the docket entry on the records of said court is attached hereto, made. a part hereof, inarked for identification ‘Exhibit D.’ That your petitioner excepted to each and every ruling of the court at the time made; that thereupon the aforesaid C. A. Houston as judge of the municipal court of the City of Tulsa, Oklahoma, signed and issued a commitment for your petitioner in accordance with the aforesaid judgment. A certified copy of said commitment is attached hereto, made a part hereof, filed herewith, and marked for identification ‘Exhibit E.’ That at all times herein mentioned C. W. Conneeiy was chief of police of the City of Tulsa, Oklahoma, and that said commitment was issued to 0. W. Conneelv as chief of police of the City of Tulsa, Oklahoma, and that your petitioner is now being held in custody in the city jail of the City of Tulsa, restrained of his liberty by the said. Connelly under authority and by virtue of said commitment and the aforesaid proceeding.
    “Your petitioner alleges that the municipal court of the City of Tulsa, Oklahoma, had no jurisdiction to try your petitioner on said charge; that the board of commissioners for the City of Tulsa, Oklahoma, had no authority to pass, approve or adopt said ordinances or either of them, and that the aforesaid proceedings in the municipal court of the city of Tulsa were illegal and void, and that the aforesaid restraint of your petitioner is illegal and unauthorized because of the aforesaid facts.
    “Wherefore, your petitioner prays this Honorable Court to grant a writ of habeas corpus, and that he be discharged without delay from such unlawful imprisonment, and that, pending the hearing of the return of said writ, your petitioner be admitted to bail in an amount to be fixed by this court.”
    “Exhibit B.
    “Published in the Tulsa Democrat July 27, 28,' 29, 1910.
    ■ “Wm. Stryker, Publisher.
    “Ordinance No. 756.
    “An Ordinance Prohibiting Persons Having the Possession of Intoxicating Liquors with Intent to Barter, Sell, Give Away or Otherwise Eumish the Same Contrary to Law, Except as Hereinafter Provided, and Declaring an Emergency.
    “Be it Ordained by the Board of Commissioners of the City of Tulsa, State of Oklahoma:
    “Section 1. That it shall be Unlawful for any person or persons to have in his, or their possession, or under his, or their, control any intoxicating liquors of any kind, including beer, ale and wine, within the City of Tulsa, with intent to barter, sell, give away or otherwise furnish the same contrary to law, except the same he held by such person, or persons, by virtue of an agency created and authorized by the Legislature to dispense such liquors for medicinal, mechanical, industrial and scientific purposes.
    “Section 2. Any person, or persons, who shall violate any of the provisions of section one (1) of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of fifty ($50) dollars and imprisonment for a period of thirty (30) days for each offense.
    “Section 3. The payment of the special tax required of liquor dealers by the United States by any person within the said City of Tulsa, except local agents appointed and acting as provided by the Legislature, shall be prima facAe evidence of. his intention to violate the provisions of this ordinance.
    “Section 4. An emergency is hereby declared, by reason whereof it is necessary for the immediate preservation of the public peace, health and safety of the inhabitants of the City of Tulsa, that this ordinance shall take effect and be in full force from and after its passage and approval as required by law.
    “Passed and approved this 26th day of July, 1910.
    “Attest: L. J. Martin, Mayor.
    “John R. Ramsey, City Atty.
    “Approved:
    “E. B. Cline, City Auditor.”
    “Exhibit C.
    “Published in the Tulsa Daily Democrat Nov. 28, 29, and 30 1910. Wm. Stryker, Publisher.
    “Ordinance No. 822.
    “An- Ordinance amending Ordinance No. 756, entitled ‘An Ordinance prohibiting persons having the possession of intoxicating liquors with intent to barter, sell, give away or otherwise furnish the same contrary to the law, except as hereinafter provided, and declaring an emergency/ and declaring an emergency.
    “Be it Ordained by the Board of Commissioners of the City of Tulsa, Oklahoma:
    “Section 1. That section 2 of ordinance No. 756, entitled, ‘An Ordinance prohibiting persons having the possession of liquors with intent to- barter, sell, give away or otherwise furnish the same contrary to law, except as hereinafter provided, and declaring an emergency/, be and the same is hereby amended to read as follows, to wit:
    “Any person who shall violate any of the provisions of section one (1) of this ordinance shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than five dollars ($5.00) nor more than one hundred dollars ($100.00) or by imprisonment in the city jail for not more than ninety (90) days or by both such fine and imprisonment.

      “Section 2. That an emergency exists for the preservation of public health and safety, by reason whereof this ordinance shall take effect from and after its passage, approval and publication.
    “Passed and approved this 22d day of November, 1910.
    “Approved: . “L. J. Martin, Mayor.
    “John R. Ramsey, City Attorney,
    “Attest:
    “E. B. Cline, City Auditor.”
    .And on said day a rule to'show cause why said petitioner should not be. discharged was made upon respondent Conneely, chief of police of the city of Tulsa, answerable December 19th. And it was ordered that, pending the determination of said cause, petitioner be admitted to bail in the sum of three hundred dollars. December 19th respondent filed a general demurrer to said petition. The case was thereupon argued and submitted, with five days ■ to serve and file brief on the part of petitioner and five days additional to file brief on the part of respondent.

      Davidson & Malloy, for petitioner.

      John R. Ramsey, City Atty., and Q. A. Houston, for respondent.
    No briefs reached the reporter.
   DOYLE, Judge.

The petitioner was charged with having on December 10, 1910, violated ordinance number 756 of the city of Tulsa, by then and there unlawfully having in his possession intoxicating liquors with intent to barter, sell, give away and otherwise furnish the same contrary to the statute and said ordinance. TJpon his arraignment, in the municipal court of said city he filed a demurrer to said complaint, on the grounds that said municipal court had no jurisdiction to try petitioner on said charge, for the reason that the aforesaid ordinances of the city of Tulsa were void, because the acts alleged to have constituted said offense are made a public offense under the statutes and the Constitution of Oklahoma and jurisdiction to try such offense is conferred exclusively upon the county court of Tulsa county, wherefore the board of commissioners of the city of Tulsa were without authority to pass, approve or adopt said ordinances or either of them. The demurrer'was overruled by the court. Whereupon petitioner demanded a trial by jury, which demand was refused by the court. Thereupon the trial was had in said court upon said complaint, and petitioner was found guilty by the court and his punishment assessed at a fine of one hundred dollars and ten days’ imprisonment in the city jail of the city of Tulsa.

The principal question presented for our consideration is: lias the board of commissioners of the city of Tulsa power to prohibit by ordinance the possession of intoxicating' liquors within said city with .intent to sell, barter, give away, or otherwise’furnish the same contrary to law and to prescribe the punishment for a violation thereof ?

The city of Tulsa is a city of the first class and is under a charter form of government, adopted under the authority and in pursuance to section 3, art. 18 of the Constitution, and this question must be determined upon a consideration of the powers granted under the constitutional provision, the statutes, and under its charter.

Section 3, art. 18 of the Constitution, provides that:

“Section 3. (.a) Any city containing a population of more than two thousand inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and laws of this state, by causing a board of freeholders, composed of two from each warcl, who shall be qualified electors of said city, to be elected by the qualified electors of said city, at any general or special election, whose duty it shall be, within ninety days' after such election, to prepare and propose a charter for such city, which shall be signed in duplicate by the members of such board or a majority of them, and returned, one copy of sajd charter to the chief executive officer of such city, and the other to the register of deeds of the county in which said city shall be situated. Such proposed charter shall then be published in one or more newspapers published and of general circulation within said city, for at least twenty-one days, if in a daily paper, or in three consecutive issues, if in a weekly paper, and the first publication shall be made within twenty days after completion of the charter; and within thirty days, and not earlier than twenty days after such publication, it shall be submitted to the qualified electors 'of said, city at a general or special election, and if a majority of such qualified electors voting thereon shall ratify the same, it shall thereafter be submitted to the Governor for his approval, and the Governor shall approve the same if it shall not be in conflict with the Constitution and laws of this state. Upon such approval it shall become the organic law of such city and supersede any existing charter and all amendments thereof and all ordinances inconsistent with it. A copy of such charter, certified by the chief executive officer and authenticated by the seal of such city, setting forth the submission of such charter to the electors and its ratification by them shall, after the approval of such charter by the Governor, be made in duplicate and deposited, one in the office of the Secretary, of State, and'the other, after being .recorded in the office of said register of deeds, shall be deposited in the archives of the city; and thereafter all courts shall take judicial notice of said charter. The charter so ratified may be amended by proposals therefor, submitted by the legislative authority of the city to the qualified electors thereof (or bjr petition as hereinafter provided) at a general or special election, and ratified by a majority of the qualified electors voting thereon, and approved by the Governor as herein provided for the approval of the charter.”

Section 2 of article 2 of the charter of the city of Tulsa provides :

“The city of Tulsa shall have power to enact and to enforce ordinances necessary to protect health, life and property and to prevent' and summarily abate and remove nuisances, and to preserve and enforce the good government, order and security of the city and the inhabitants of said citjq and to enact and enforce any and all ordinances upon any subject; provided that no ordinance shall be enacted inconsistent either with the Constitution or law of the State of Oklahoma, or inconsistent with the provisions of fhis charter; and provided further, that the specifications of particular, powers herein authorized shall never be construed as a limitation upon the general powers herein granted, it being intended by this charter to grant to and bestow upon the inhabitants of the city of Tulsa full power of self-government, and it shall have and exercise all powers of municipal government not prohibited to it by this charter or by some general law of the state of Oklahoma, or by the provisions of the Constitution of the State of Oklahoma.”

And subdivision 3 of section 3 of article 2 of said charter in part provides:

“The city of Tulsa shall have power, by ordinance duly passed to prohibit dram shops, drinking saloons and other places where intoxicating liquors are sold.”

Section 2 of art. 18 of the Constitution provides that:

“Every municipal corporation now existing within this state shall continue with all of its present rights and powers until otherwise provided by law, and shall always have the additional rights and powers conferred by this Constitution.”

Section 683 of Snyder’s St. provides:

“The city council shall have power to enact ordinances to restrain, prohibit and suppress tippling shops, billiard tables, bowling alleys, houses of prostitution and other disorderly houses, and practices, games and gambling houses, desecrations of the Sabbath . day, commonly called Sunday, and all kinds of public indecencies. * * * ”

Begarding the foregoing constitutional, statutory and charter provisions, counsel for petitioner contend and argue that:

. “These are all general grants of powers for the general welfare of the city. We contend that the power to adopt the ordinances in question cannot rest in these general grants of power. Municipal corporations under the usual grant of power, generally known as the general welfare clause, can not by ordinance declare those acts offenses against the city, which by the general statutes of the state are defined and made punishable as offenses against the state. In other words, that in order to pass valid ordinances covering such offenses as are already covered by the state law, the city must have express power granted to it for that purpose by the Legislature, and that under the police power inherently vested in it, the city has no power to punish for an offense which is a crime against the state.” — Citing numerous authorities from at least a dozen states.

The cases cited all maintain that under a general grant a city has no power by ordinance to punish for offenses provided for by the general laws of the state, and that such ordinances are absolutely void. TJpon this question there is a great and serious conflict in the authorities, and in one state the courts of last resort have disagreed. (Ex parte Combs, 38 Tex. Cr. 648; Harris Co. v. Stewart, 91 Tex. 133.) Under our Constitution and laws the doctrine of those eases have no application here. The foregoing-provision of our Constitution contemplates the organization of municipal corporations, not by general or special legislative charter, but under a charter formulated and adopted by the citizens of the municipality. And when a city formulates and adopts a charter under the constitutional provision, the municipal corporation as organized may be considered a separate government, invested with full power of local legislation under its charter, the same being the organic law of the corporation.

A municipal corporation has been tersely defined to be: “The investing of the people of a place with the local government thereof.” Judge Dillon says:

“We may therefore define a municipal Corporation, in its historical and proper sense, to be the incorporation by the authority of the government of the inhabitants of a particular place or district and authorizing them in their corporate capacity to exercise subordinate specified powers of legislation and regulation with respect to their local and internal concerns. This power of local government is the distinctive purpose and the distinguishing feature of a municipal corporation proper.” (Dill. Mun. Corp. par. 20.)

The general rule as to the powers possessed and which may be exercised, as defined by Judge Dillon, is:

“First, those granted in express words; second, those necessarily or fairly implied in, or incident to, the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, — not simply convenient, but. indispensable.” (Ex parte Jones, 4 Okla. Cr. 74, 109 Pac. 570.)
“When the state delegates to municipal corporations the powers of local self-government, it also delegates the power to pass all needful rules and regulations in the form of ordinances for this purpose. Charters generally contain specific enumerations of the subjects upon which the municipal corporation may legislate. This enumeration is usually followed by a general delegation of authority to pass all ordinances which may be necessary for the promotion of the police and sanitary affairs of the city, its good order, advancement of commerce and general welfare of the locality, which shall he consistent .with the Constitution and general laws of the state and local charter. This latter grant is generally, though not always, considered to give authority to enact ordinances upon all other subjects within -the scope of municipal jurisdiction which are not mentioned in the specific enumeration. Of course, the passage of such ordinances must be reasonably necessary for the purpose of enabling the corporation to fulfill the objects of its creation. In other words, the detailed enumeration is not construed as denying the inherent power of the municipal corporation to make all proper or necessaiy ordinances respecting matters not specified, unless the intention to do so is clear. The limitation is that all such ordinances must be confined strictly to corporate or municipal purposes, and be in harmony with the charter, Constitution, general laws and public policy of the state.” (McQuillin, Munic. Ordin. par. 50.)
“The proposition cannot be denied that orgalnized government has the inherent right to protect health, life and limb, individual liberty of action, private property and legitimate use thereof, and provide generally for the safety and welfare of its people. Not only does the right exist, but this obligation is imposed upon those clothed with the sovereign power. This duty is sacred, and cannot be evaded, shifted or bartered away without violating a public trust.” (McQuillin, Munic. Ordin. par. 430.)
“The police regulations of municipal corporations are usually enforced by ordinance. What police powers the local corporation may exercise, and the manner in which they are to be enforced will depend upon its charter or legislative acts applicable, and the general policy of the state with respect thereto. Generally, cities may make and enforce within their limits all such local police, sanitary and other regulations designed to promote the health, safely, comfort, convenience and welfare of the local community which are not in conflict with Constitution or the general laws. Crowded urban populations require numerous police regulations which would be unreasonable in rural districts or sparsely populated territory. This difference was quickly recognized, and from the first establishment of local corporations, invested with civil government, the local community has been empowered to enact and enforce all sorts of such regulations which restrict more or less the liberty of the individual, his personal movements and the use of his property. These are absolutely essential to life in crowded centers. From the beginning their necessity has been sanctioned by the public authorities and they have been sustained generally by the courts. The police power primarily inheres in the state, but if the state Constitution does not forbid, the Legislature may delegate a part of such power to the municipal corporations of the state, either in express terms or by implication.” (MeQuillin, Munic. Ordin. par. 433.)

As we construe the constitutional provision and the powers granted in the city charter, no power could be or has been conferred upon the board of commissioners of the city of Tulsa to enact or adopt ordinances for the punishment of offenses under the general laws of the state. The powers conferred by the charter are for municipal purposes only, and the object of the ordinance in question was not to punish an offense against the criminal laws of the state, but to provide a mere police regulation for the purpose of protecting the public peace, “and to preserve and enforce the good government, order and security of the city and the inhabitants of said city.” The general law of the state which punishes this offense as a misdemeanor has not been superseded by the charter and ordinances of the city. The jurisdiction of the state to try the offense remains wholly unaffected and unimpaired. The general law and the local ordinances must stand together. The one is an offense against the state law, and the other a different petty offense against the city ordinance, and the two offenses being different, the offender may be proceeded against under either the city ordinances, the state law, or both. The one contemplates the preservation of the good government, order and security of the city; the other provides for the maintenance of the public peace and dignity of the state.

“Unless it is prohibited by some express constitutional or statutory provision, by the great weight of authority municipal corporations may, by ordinance, prohibit and punish acts which are also prohibited and punishable as misdemeanors under the general statutes of the state, or which may involve a common law offense; and while many such ordinances contain provisions for matters peculiar to communities of dense population, which' are not noticed by the general law, many others are mere municipal repetitions or re-enactments of state statutes. The latter, after much strenuous contention, are now generally recognized as valid ordinances; although some cases declare them non-enforceable as being a secondary exercise of a sovereign power, which may not be employed by a municipality without express, authority. Other cases favor the implication of police power in the municipality under authority to pass laws for 'the public peace, safety, etc., where the offense.does not vitally affect the public interests, but specially concerns the municipal welfare.” (28 Cyc. 697, and cases cited.)

Says Mr. Cooley:

“Rut in these cases the control of the state is not excluded if the Legislature afterward see fit to exercise it; nor will conferring a power upon a corporation to pass by-laws and impose penalties for the regulation of any specified subject necessarily supersede the state law on the same subject, but the state law and the by-law may both stand together if not inconsistent. Indeed, an act may be a penal offense under the laws of the state, and further penalties, under proper legislative authority, be imposed for its commission by municipal by-laws, and the enforcement of the one would not preclude the enforcement of the other.” (Cooley’s Constitutional Limitations [7th Ed!]' 279, and eases cited.)

A few cases illustrative of this principle are a& follows:

In Mayor v. Rouse, 8 Ala. 518, the court said:

“Such by-laws, though given the force of law by the charter, for the purpose of municipal government, yet relate to that solely, and prosecutions for mere violation have no reference, as a general rule, to the administration of criminal justice by the state.”

In Mayor, etc., of Mobile v. Allaire, 14 Ala. 400, the validity of a municipal by-law, imposing a fine of fifty dollars for an assault and battery committed within the city, was brought in question. Collier, Ch. J., says:

“The object of the power conferred by the charter, and the purpose of the ordinance itself, was not to punish for an offense against the criminal justice of the county, but to provide a mere police regulation for the enforcement of good order and quiet within the limits of the corporation. So far as an offense has been committed against the public peace and morals, the corporate authorities have no power to inflict punishment, and we are not informed that they' have attempted to arrogate it. It is altogether immaterial whether the state tribunal has interfered and exercised its power in bringing the defendant before it to answer for the assault and battery; for whether he has there been punished or acquitted is alike unimportant. The offense against the corporation and the state, we have seen, áre distinguishable and wholly disconnected, and the prosecution at the suit of each proceeds upon a different hypothesis; the one contemplates the observance of the peace and good order of the city; the other has a more enlarged object, in view, the maintenance of the peace and dignity of the state.”

In the case of State v. Lee, 29 Min. 445, 13 N. W. 913, it was held that an offense against a municipal by-law, proceeding (from the same act which also constitutes a felony under the state law, is not, for that reason, to be considered the same offense. The two are distinct in their legal character, both as to the nature and quality of the offenses and the jurisdictions offended against. Quoting from the opinion:

“One who is within the limits of a municipal jurisdiction must not only obey the laws of the state, but must adjust his conduct to the requirements of local by-laws. An act which, outside a city, would subject him to punishment by the state only, committed inside its limits, by reason of the place and the consequent aggravation attending it, will render him liable also for the additional penalty. The same act prohibited by both the city and the state may thus constitute two offenses, which are intrinsically and legally distinguishable.”

In the case of McInerney v. City of Denver et al., 29 Pac. 517, Helm, Judge, used the following language:

“We encounter greater difficulty in disposing of the remaining general objection urged by counsel for petitioner, viz., that the ordinances through which petitioner’s conviction took place are invalid, and therefore the police court is proceeding illegally. Great reliance is placed upon the proposition that since, by general statute, the act with which .petitioner is charged is made a misdemeanor, punishable by indictment or information, trial by jury, etc., the ordinances involved are obnoxious to a number of constitutional provisions touching criminal cases. The Legislature may undoubtedly delegate to municipal corporations power to adopt and enforce by-laws or ordinances on matters of special local importance, even though general statutes exist relating to the same subjects. An ordinance must be authorized, and must not be repugnant to a statute in force over the same territorial area; but if there be no other conflict between the provisions of the statute and ordinance, save that they deal with the same subject, both may be given effect. The resulting or correlative doctrine is now too firmly established to admit of serious question that the same act may constitute two offenses, viz., a crime against the public law of the state, and also a petty offense against a local municipal regulation. The weight of authority likewise fairly sustains the view that a prosecution and punishment for one of these offenses is no bar to a proceeding for the other, though if it be not so provided by statute, every fair minded judge will, when pronouncing judgment in the second prosecution or proceeding, consider a penalty already suffered. Since the act constitutes two distinct offenses against separate jurisdictions, it is analogous to those cases where the same act is punishable under a congressional statute, and also under a state law. The offenses being different, there is no violation of the constitutional inhibition against putting one twice in jeopardy for the same offense. These views have already, in substance, been sanctioned by this court, (Hughes v. People, 8 Colo. 536, 9 Pac. Rep. 50) and they are sustained by the following, among other, authorities: Cooley, Const. Lim. (5th Ed.) 241, 242 and note 1; Dill. Mun. Corp., par. 367, 368, and note 1; Bish. St. Crimes, par. 23; Whart. Crhn. Pl. & Pr. 440; State v. Lee, 29 Minn. 45.3, 13 N. W. Rep. 913; Waldo v. Wallace, 12 Ind. 569; State v. City of Topeka, 36 Kan. 76, 12 Pac. Rep. 310; Greenwood, v. State, 6 Baxt. 567; Howe v. Treasurer, 37 N. J. Law, 145; Mayor, etc., v. Allaire, 14 Ala. 400; Hamilton v. State, 3 Tex. App. 643; Shafer v. Mumma, 17 Md. 331; State v. Sly, 4 Or. 277; Johnson v. State, 59 Miss. 543; Wragg v. Penn. Tp. 94 Ill. 11; McLaughlin v. Stephens, 2 Cranch. C. C. 148; City v. Cafferata, 24 Mo. 96; Rogers v. Jones, 1 Wend. 238; Cross v. North Carolina, 132 U. S. 131, 10 Sup. Ct. Rep. 47.”

Under the prohibition ordinances of the Constitution the minimum punishment for a violation of any of its provisions is by a fine not less than fifty dollars and by imprisonment not less than thirty days for each offense. The punishment fixed by stat-ate for a violation of any of the provisions of the prohibition law is: o

“A fine of not less than fifty dollars nor more than five hundred dollars, and by imprisonment for not less than thirty days, nor more than six months.” (Sec. 4180, Snyder’s St.)

The maximum punishment permitted for a violation of a police ordinance of a city of the first class is as follows:

“For any purpose, or purposes, mentioned in the preceding-sections, the council shall have power to enact and make all necessary ordinances, rules and regulations, and they shall, also, have power to enact and make all such ordinances, by-laws, rules and regulations, not inconsistent with the laws of the state, as may be expedient for maintaining the peace, good government and welfare of the city, and its trade and commerce.; and. all ordinances may be enforced by prescribing and inflicting, upon inhabitants or other persons violating the same, such fine, not exceeding one hundred dollars, or such imprisonment, not exceeding three months, or both such fine and imprisonment, as may be just, for any offense, recoverable with costs of suit, together with judgment of imprisonment, until the fine and costs be paid or satisfied; and any person, committed for the non-payment of fine and costs, or either, while in custody, may be compelled to work on the streets, alleys, avenues, areas and public grounds of the city, under the direction of the street commissioner or other proper officer, and at such rate per day as the council may by ordinance prescribe, until such fine and costs are satisfied.” (Sec. 701, Snyder’s St.)

Thus we see that, if a prosecution under a municipal ordinance would be a bar to a prosecution for the same act as an offense under the general criminal laws of the state, in all cases in which a prosecution is first had under the municipal ordinance, the result would be a material abridgement of the punishment which the constitutional provision and the statute imposes, and in effect it would thus virtually repeal or modify the constitutional provision and the statute. As was said by Mitchell, Judge, in State v. Lee, supra:

“There are other considerations, founded on public policy and public necessity, which, although not controlling, are entitled to weight. The principle involved is far-reaching. There are many tilings besides keeping houses of ill-fame which municpial corporations are authorized to suppress by ordinance, which are crimes under the general laws of the state. Now, if, on the one hand, it be held that all such ordinances are void as repugnant to the general Statutes, and that a municipal corporation cannot prohibit by ordinance any act which is a crime under such statutes, the corporations would be shorn of many police powers which they have always been supposed to possess, and which are absolutely necessary to the preservation of good order within their limits. On the other hand, if it be held that a so-called prosecution under a city or village ordinance is a bar to a prosecution for the same act as a crime under the general criminal laws of the state, it would virtually amount to a repeal pro tanto of these general laws in every city, town and village in the state. Such a sweeping abdication on the part of the state of her authority to punish crime,' in favor of the uncertain and variable ordinances of every city and village, would be too alarming in its consequences to be seriously entertained. It would result in the anomaly of the same crime being liable to be punished in as many various ways as there are cities and villages in the state, and of the same crimes when committed within the limit's of. a city or village being punishable only by a petty fine, which if committed in the. rural districts of the state, would be punishable by imprisonment in the state prison.”

The prohibition ordinance of the Constitution and the statutes prohibiting the manufacture, sale, barter, giving away and otherwise furnishing of intoxicating liquors exemplify the public policy of the state in relation to the traffic in intoxicating liquors, and, in view of the public policy of the state, we believe that it is a proper exercise of the police power of a municipal corporation to prohibit the sale and the unlawful possession of intoxicating liquors within the confines of the corporation. Prohibiting the possession of intoxicating liquors with intent to barter, sell, give away and otherwise furnishing the same contrary to law is so necessarily incidental and relevant to prohibiting “dram-shops, drinking saloons, and other places where intoxicating liquors are sold,” and is so evidently a legitimate means to that end. as to render either argument or citation of authorities to that effect superfluous, and the power so expressly granted necessarily carries with it the power to prohibit the unlawful possession for the purpose of sale.

We are of opinion that the provisions of the charter of the city of Tulsa are broad enough to, and do, include the power to prohibit by ordinances the possession of intoxicating liquors within the confines of the corporation for the purpose of sale, barter, giving away and otherwise furnishing contrary to law — also power to enforce the punishment prescribed for violation thereof.

Counsel further contend that:

“The offense charged against petitioner is essentially criminal under the general laws of the state, and petitioner is entitled to a jury trial. The fact that an appeal lies to a court in which a jury trial may be had, does not meet the requirements of the Constitution.” — Citing the case of Callan v. Wilson, 127 U. S. 540, 32 L. Ed. 223.

This important question is now for the first time presented for determination by this court. Section 19 of the Bill of Rights provides that:

“The right of trial by jury shall be and remain inviolate.”

Section 20 of the Bill of Rights provides that:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county \n which the crime shall have been committed.”

A. careful examination of the authorities leads us to the conclusion that prosecutions for violations of municipal ordinances, enacted under the police power for the preservation of peace, good order, safety and health and otherwise promoting the general welfare within cities, have been generally without the intervention of a jury, at least in the first instance.'

Judge Dillon says:

“On of the question which most frequently arises is whether the defendant is entitled to a trial by jury, and the cases on this subject cannot all be reconciled. The general principles applicable to its solution, however, are plain. Violations of municipal bylaws proper, such as fall within the description of municipal police regulations, as, for example, those concerning markets, streets, water-works, city officers, etc., and which relate to acts and omissions that are not embraced in the general criminal legislation of the state, the Legislature may authorize to be prosecuted, in a summary manner, by and in the name of the corporation, and need not provide for a trial by jury. Such acts and omissions are not crimes or misdemeanors to which the constitutional rights of trial by jury extend.”

And again:

“Where the act or omission sought to be punished by imprisonment under a municipal ordinance is in its nature not peculiarly an offense against the municipality, but rather against the public at large, where it falls Avithin the legal or common-law notion of a crime or misdemeanor, and especially where, being of such a nature, it is embraced in the criminal code of the state, there the constitutional guaranties intended to secure the liberty of the citizen, and the right to a trial by jury cannot be evaded by the nature of the powers rested in the municipal corporation or the nature of the jurisdiction conferred upon the municipal courts.” (1 Dill. Mun. C'orp. [3d Ed.] para. 433.)
“It has been held sometimes that under Constitutions summary proceedings of this kind can be employed only in the trial of such offenses as are ‘not embraced in the public criminal statutes of the state/ and that where the act charged constitutes an offense against the criminal law of the state, a person charged with such act cannot be tried by a municipal court without a jury, even though such act may be a violation of an ordinance of the municipality. This view seems based on the idea tha+ otherwise a person might be liable to be tried and punished twice for the same offense. But this reason can have no force in those states where the same act may constitute an offense against both the state and the municipal corporation, and both offenses be punished without violating any constitutional principle. In the courts Avhere this vieAv is held it has been denied that the test is whether the act prohibited by ordinance is embraced in and made indictable by the criminal code of the state, and the true criterion declared to be rather whether it may not be an act not only against the peace and dignity of the state, but also subversive of, or dangerous to, the peace, good order, safety, or health of the municipality.” (A. & JJ. Enc. of LaAv, vol. 27, p. 376.)

As we construe these constitutional provisions the first means that a jury trial is preserved in all cases in Avhich it existed at the time of the adoption of the state Constitution. It does not extend the right of trial by jury; it simply secures it in all cases in which it was a matter of right before. The second secures to the accused in all criminal prosecutions the right of trial by a jury of the county. A prosecution for the violation of a municipal ordinance which prohibits an act which also constitutes an offense under the general criminal law is a quasi criminal proceeding. At the time the state Constitution was adopted the laws in force in the territory of Oklahoma provided two modes of appeal from police courts. These provisions were as follows:

“That from any final judgment of the justice of the peace or the police judge the defendant may appeal to the probate court of the county, upon filing, within ten days from the date of the judgment, a good and sufficient bond in double the amount of the fine and costs, signed by two or more sureties to be approved by the justice of the peace, conditioned that the appellant will appear before the probate- court of the next regular term thereof, and will pay and satisfy any fine and all costs that may be rendered against him in the probate court, and that he will submit himself for imprisonment if imprisonment be adjudged against him, and will obey all orders and judgments of the probate court in the disposition of the appeal; Provided, however the judgment of the probate court shall be final, unless the defendant desires to appeal on questions of law alone, then an appeal may be taken to the district court of the county as herein provided, substituting in the new bond the district court in place of the probate court. Upon the filing of said bond, either in the justice of the peace or the probate court, the defendant must be given his liberty. Provided, further, if the defendant desires to appeal without giving bond as herein provided, he must be confined in jail until the appeal is disposed of; and if the defendant remain in jail before the appeal is disposed of long enough to liquidate the fine and costs of the court below, at the rate of two dollars per day, then he must be discharged and no further prosecution shall be had in the case.” (Sec. 1, ch. 29, Session Laws of 1905, sec. 7195, Snyder’s St.)
“In all cases before the police judge arising under the ordinances of the city, an appeal may be taken by the defendant to the district court, but no such appeal shall be allowed unless the defendant, within ten days, shall enter into a recognizance with good and sufficient sureties, to be approved by the police judge, conditioned for the personal appearance of the appellant before the district court of the county on the first day of the next term thereof.” ( Sec. 432, Wilson’s St., see 746, Snyder’s St.)

The first provision evidently was intended to provide a mode of appeal from justices of the peace or police judges in cities, towns and villages organized under the provisions of chapter 15, Snyder’s Statutes. The’ second provision secures to the accused an unqualified right of appeal to a court in which he may have a trial by jury, requiring only a sufficient recognizance, conditioned for the personal appearance of the appellant before the appellate court on the first day of the next term thereof.

It is provided in section 10, article 7 of the Constitution, that:

“The district court shall have such appellate jurisdiction as may be provided in this Constitution, or by law.”

By act of June 4, 1908, (Sec. 1979, Snyder’s St.) it is provided that:

“The county court shall have, concurrent with the district court, appellate jurisdiction of judgments of justices of the peace and of judgments of police judges in all civil and criminal cause».’’

The constitutional provisions simply secure the right to a trial by jury without directing the mode or manner in which it shall be enjoyed, and it is the province of the Legislature to enact laws regulating the mode in which the rights secured to the citizen by the Constitution shall be enjoyed.

A similar provision was construed in the case of the City of Emporia v. Volmer, 12 Kan. 622, wherein Judge Brewer used this language:

“The statute plainly authorizes such summary proceeding in the police court. And the only question that can be raised is, whether such section conflicts with the provision in paragraph 5 of the Bill of Rights, which declares that The right of trial by jury shall be. inviolate.’ Without attempting to decide as to the extent or limits of this constitutional provision, it is enough -for us in this case to decide that, where the summary proceeding, authorized by statute, is in a municipal court, for the violation of one of the city ordinances, and the defendant may have an appeal, clogged by no unreasonable restrictions, to an appellate court in which he has a right to a trial by jury, this is sufficient.” — Citing Byers v. Commonwealth, 42 Penn. St. 89; McCear v. Woodruff, 33 N. J. Law, 213.

In the case of Jones v. Robbins, 8 Gray, 329, it was said:

“And we believe it has been generally understood and practiced here and in Maine, and perhaps in other states having a similar provision, that as the object of the clause is to secure a benefit to the accused, which he may avail himself of or waive, at his own election; and as the purpose of the provision is to secure the right, without directing the mode in which it shall be enjoyed; it is not violated by an act of legislation, which authorizes a single magistrate to try and pass sentence, provided the act contains a provision that the party shall have an unqualified and unfettered right of appeal, and a trial by jury in the appellate court, subject only to the common liability to give bail, or to be committed to jail, to ensure his appearance and to abide the judgment of the court appealed to. This is a necessary inconvenience, as is also the delay of the trial till the sitting of such court; they are the same and no greater than they would be in case the magistrate, instead of passing sentence, should, on examination, bind the accused over, or, as the necessary alternative, commit him to jail. Such seems to have been the construction of a similar provision in other states. Emerick v. Harris, 1 Binn. 416; Murphy v. People, 2 Cros. 815; Jackson v. Wood, 2 Conn. 819; Beers v. Beers, 4 Conn. 535; Sullivan v. Adams, 3 Gray, 477. It appears to us, therefore, that such a provision is not void, as a violation of that clause, which, in criminal cases, secures to the accused a right of trial by jury.”

These provisions undoubtedly secure the right of appeal without unreasonable restrictions from the municipal court of the city and a trial by jury in the appellate court. Our conclusion is that the defendant’s constitutional guaranty of a trial by jury has not been impaired.

It is also contended that as the case was prosecuted in the name of the city of Tulsa, it was in violation of see. 19, art. 7 of the Constitution, which provides:

“The style of all writs and processes shall be ‘The State of Old ahorna.'’ All prosecutions shall be carried on in the name and by the authority of the State of Oklahoma.”

The charter of the city of Tulsa provides (Sec. 14, art. 11):

“All writs, subpoenas, or other process issuing out of the city court, shall run in the name of the city of Tulsa, and may be executed and served by the chief of police or his deputies, or policemen of said city anywhere in Tulsa county, Oklahoma.”

We are of opinion that the constitutional provision does not extend to prosecutions for violation of city ordinances, and that this provision of the city charter is not in conflict with the constitutional provision.

The Constitution of the state of Iowa contains a similar provision. The charter of the city of Davenport authorizes prosecutions for violations of ordinances to be instituted in the name of the city, and it was contended that this portion of the charter was in conflict with the Constitution. In the case of Davenport v. Bird. 34 Iowa, 524, it was held otherwise. Miller, Judge, delivering the opinion of the court, says:

“Is it necessary, under the Constitution, that all prosecutions for violations of municipal police ordinances shall be conducted in the name and by the authority of the state of Iowa? Or, in other words, is that clause of the.city charter of Davenport, which directs that ‘all suits, actions, and prosecutions be instituted, commenced, and prosecuted in the name of the city of Davenport,’ in conflict with the constitutional provision before referred to? We are of the opinion that it is not. This clause of the Constitution occurs in article 5, which treats of the judicial department of the government. This article vests and defines the judicial power of the state, establishes the tenure of office of the judges, and defines the mode of their election; fixes their salary and limits the number of judicial districts; provides for the election of an Attorney General, and other matters pertaining to the judicial arm of the state, among which is the clause under consideration. From all this it seems manifest that the requirement ‘that all prosecutions shall be conducted in the name of the state of Iowa,’ contemplates such criminal prosecutions as shall be instituted and prosecuted before the tribunals which are provided for in that article of the Constitution under the statutes of the state. It is fitting and appropriate that prosecutions for violations of the criminal laws of the state should be carried on in the name of the government. But there is no fitness or propriety in requiring the state to be a party to every petty prosecution under the police regulations of a municipal corporation. Such a construction of this article of the Constitution seems to us to be unwarranted, and not intended by the framers of the Constitution. It was held by the Supreme Court of Pennsylvania that the word ‘process/ in the twelfth section of the fifth article of the Constitution of the state, which provides that ‘the style of all process shall be the commonwealth of Pennsylvania/ was intended to refer to such writs only as should become necessary to be issued in the course of the exercise of that judicial power which is established and provided for in the article of the Constitution, and forms exclusively the subject-matter of it. On the same principle we are of the opinion that the word ‘prosecution/ in the eighth section of article 5 of our Constitution, was intended to refer only to such criminal prosecutions under state laws as should be cognizable by the judicial power, which is established and provided for in that article, and that it was not intended to include prosecutions under ordinances of municipal corporations cognizable before police magistrates.”

See, also, People v. Justices, 74 N. Y. 406; Williams v. Augusta, 4 Ga. 509; Ex parte Hollwedell, 74 Mo. 395; Williams v. Comm., 4 B. Mon. (Ky.) 156; Seattle v. Chin Let, 19 Wash. 38, 52 Pac. 324; Abbeville v. Leopard, 61 S. C. 99, 39 S. E. 248; Plateville v. McKerman, 54 Wis. 487.

Eor the reasons stated, we conclude that the municipal court of the city of Tulsa had jurisdiction of the subject-matter and petitioner, and that petitioner’s imprisonment is not illegal.

The writ of habeas corpus is denied, and petitioner is remanded to the custody of the chief of police of the city of Tulsa.

FURMAN, Presiding Judge, and RICHARDSON, Judge. concur.


author: PER CURIAM.

text:
    GEORGE W. McNAUGHT v. STATE.
    No. A-384.
    Opinion Filed January 2, 1911.

      Appeal from Disirici Court, Kingfisher County; A. H. Huston, Judge.

    George W. McNaught was convicted of manslaughter in the first degree and appeals.
    Affirmed.

      D. K. Cunningham, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, George W. McNaught, was convicted in the district court of Kingfisher county of the crime of manslaughter in the first degree, and sentenced to life imprisonment. The judgment and sentence was entered on October 29, 1908’. Prom such judgment and sentence an appeal was properly perfected by filing in this court a petition in error with case-made attached, together with proof of service of notices of appeal.

No brief has been filed. On September 1, the Attorney General filed a motion to affirm the judgment for want of prosecution, to which motion no response has been filed. The records of this court show that on the 24th day of January, 1909, an order was made permitting counsel for plaintiff in. error to withdraw the record for ninety days for the purpose of using the same in preparing a brief therein, and the time in which to serve and file brief was extended for ninety days. There has been a failure to return the record, and it is evident that the appeal in this case has been abandoned. The motion to affirm is sustained, and the judgment of the lower court is hereby affirmed.


author: PEE GUEIAM.

text:
      In re POLEY McAFFREY.
    No. A-919.
    Opinion Filed January 9, 1911.
    HABEAS CORPUS — Failure to File Briefs — Discharge of Writ. When a party obtains a writ of habeas corpus, and time is granted for filing briefs, and the petitioner allows such time to expire, and fails to file the briefs, and' maltes no further appearance in the cause, the writ of habeas corpus will be discharged and petitioner wlli be remanded to the custody of the officer who had him in custody upon the issuance of the writ.
    (Syllabus by the Court.)
    Application of Poley McAffrey for writ of habeas corpus.

    Writ discharged and petitioner remanded.
   PEE GUEIAM.

Poley McAffrey filed in this court on October 1, 1910, a petition, wherein it is alleged that he is unlawfully imprisoned and restrained in the county jail of Ottawa county by J. T. Huldll, sheriff of said county; the cause of said restraint being a bench warrant issued upon an alleged illegal and unauthorized information filed in the county court sitting at the town of Afton, which town is not the county seat of Ottawa county. Upon this petition a writ of habeas corpus issued, returnable October- 7, 1910, at which time respondent filed his return to said writ, and 10 days was given to counsel for petitioner to file briefs. No briefs have been filed and no further appearance made in said cause. As said proceedings have apparently been abandoned, the writ of habeas corpus heretofore issued is hereby discharged, and the petitioner is hereby remanded to the custody of the sheriff of Ottawa county.


author: DAVENPORT, J.

text:
    DAVE BROWN v. STATE.
    No. A-6734.
    Opinion Filed April 18, 1928.
    (266 Pac. 491.)

      Cargill & Whiteside, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of robbery with the use of firearms, and sentenced to death by electrocution. The facts in the case are as follows:

On the 17th day of March, 1927, there was filed by the county attorney of Alfalfa county information charging the defendant with the crime of robbing the Farmers’ State Bank of Jet, Okla., with the use of firearms. On March 19, 1927, the defendant, Dave Brown, was brought before the district judge of Alfalfa county, and the district court was regularly convened, and defendant entered a plea of guilty to the charge in the information, and was sentenced by the district judge to death by electrocution on the 20th day of May, 1927. On the 21st day of March, 1927, there was filed in the district court of Alfalfa county a motion to set aside the judgment and sentence and recall the death warrant, and later an amended motion was filed, and an amendment to the motion, and, on April 16, 1927, the second amended motion was filed to set aside the judgment and sentence and recall the death Warrant; the grounds upon which the defendant relied in his second amended motion being as follows:

“First. That said defendant, Dave Brown, is now and on the 19th day of March, 1927, a minor of the age of 19 years, and that said defendant did not have a full and complete preliminary hearing as provided by law, prior to the filing of the information in the district court in this case, and that, if a preliminary hearing was had, the defendant was not advised as to his right to have counsel and attorneys at such preliminary hearing, and that said defendant was mentally incompetent to have waived a preliminary hearing.
“Second. That the record shows that the defendant was charged by complaint of the county attorney of Alfalfa county with this offense on the 15th day of March, 1927, and that on the same day said defendant was committed by the county judge of Alfalfa county, as examining magistrate, to jail, and bound to appear in the district court of said county, and that said record does not disclose that the defendant waived his right to plead or to have counsel, and that said defendant was incapable mentally of waiving such right.
“Third. That the defendant was not served with a copy of the information together with a list of the witnesses and their addresses, for two full days prior, to the alleged hearing on March 19, 1927, and that said defendant was mentally incompetent to waive the same.
“Fourth. That the record does not disclose that the defendant entered any plea of guilty, and the defendant was mentally incompetent to waive the same.
“Fifth. That, if any plea was entered by the defendant, he did not realize the consequences of his acts, and the court did not fix the time for passing judgment and sentence, as required by law, and the defendant was not mentally capable of waiving the same.
“Sixth. That the judgment of the court was rendered in haste, and imposes a cruel and unusual punishment in direct conflict with thq 'statutes of the state of Oklahoma and the Bill of Rights of the 'Constitution of the State of Oklahoma.
“'Seventh. That the defendant was not fully advised as to his constitutional rights as to being entitled to counsel to represent him at all stages of the case.
Eighth. That the defendant was not advised of his constitutional rights to have a jury pass upon the degree of punishment to be given him upon his plea of guilty.
“Ninth. That the defendant was not advised as to his right to have 24 hours within which to plead to the information, and the defendant was mentally incompetent to waive the same.
“Tenth. That the court failed to protect the rights of this defendant, in that the court did not ascertain at said hearing the facts and circumstances surrounding the alleged offense and the facts and circumstances surrounding the supposed plea of guilty.
“Eleventh. That the conduct and demeanor of defendant as shown by the record at the time of the passing of the judgment and sentence of death upon this defendant were such as to create in the mind of the court a reasonable doubt as to the sanity of the defendant, and it was the duty of the court to have had the defendant examined as to his sanity.
‘Twelfth. That the record discloses that the defendant was deprived of his life and liberty without due process of law.
“Thirteenth. That the record discloses that no proper judicial hearing and determination of the rights of this defendant were had as contemplated by section 2785, 1921 Compiled Statutes, and for that reason this defendant is deprived of his constitutional and statutory rights.
“Fourteenth. That the record discloses that the punishment imposed upon this defendant was not for the alleged commission of the offense charged, but was imposed by the court in a heat of passion, and without due deliberation, and as a penalty upon the defendant for refusing to inform the court as to the identity of the other parties presumed to have been associated with the defendant in the commission of the alleged offense; and the record shows on its face that said sentence was not attended with due deliberation and the solemnities necessary and proper in passing sentence of death upon the defendant, and that the same was rendered in haste, and thereby deprived the defendant of his constitutional right of due process of law.
“Fifteenth. That the defendant is mentally incapacitated, and was so at the time of said hearing, as to realizing the consequences of his acts, and the defendant here and now offers to prove such facts by affidavits now presented to this court and by oral testimony, and asks that the judgment and sentence of this court be withdrawn and the death warrant be recalled, and that a jury be impaneled to try the sanity of this defendant.”

The motion was assigned for hearing on April 18, 1927, and, on the 18th day of April, 1927, hearing upon the motion began. The defendant called as witnesses in his behalf his mother and several other witnesses tending to show the defendant was mentally incompetent, and did not known the consequences of his acts, or what punishment might be imposed upon his plea of guilty.

The state introduced evidence tending to' show that, when the information was filed in the district court, a copy of the information, together with a list of the witnesses, was served upon the defendant on March 17, 1927, and, on March 19, 19'27, the case was called for plea in the district court; that the court advised the defendant of his rights under the law; that he was entitled to have counsel to represent him, and defendant advised the court that he did not desire the aid of counsel, and was ready to have the sentence imposed upon him; that the court advised the defendant what punishment could be imposed by the court, and defendant replied that he was ready to take it; that the court tried to get the defendant to tell who took part with him in the robbery of the bank of Jet, and he declined and refused to do so. The court, after hearing the argument of counsel and considering the evidence, on the 19th day of May, 1927, denied the motion to set aside and vacate the judgment and sentence and recall the death warrant; to which ruling of the court the defendant at the time in open court duly excepted, and gave notice of appeal, and the case is in this court for review.

The defendant has assigned seven errors alleged to have been committed by the trial court, but the only errors we deem necessary to consider are assignments 5 and 7, which are as follows:

“(5) That the judgment and sentence of the plaintiff in error was given and passed through passion and prejudice.”
“(7) That the punishment is excessive.”

A careful examination of the record disclose^ ¡the fact that, when the defendant appeared in the trial court to enter his plea, he declined to have any assistance whatever, refusing to permit his mother to intercede in his behalf, and objected to any delay in the sentence being imposed upon him. That the court advised him of his rights to have counsel to represent him, and advised him that, upon conviction upon his plea, the court might impose the death penalty, and the defendant replied that he was ready to take his part.

The record further discloses that the court advised the defendant that he had received information that others were implicated with him in the robbery of the bank at Jet, and the defendant replied that he had refused to put out any statement on that, and the court then stated to the defendant — referring to the punishment — “It is liable to be a good deal more, unless you tell the court,” and defendant declined to tell who was with him, and the court gave him time to think it oyer before passing sentence upon him. The court then imposed a sentence of death by electrocution upon the defendant, and, after the sentence was imposed, the court then told the defendant, “If you want to come through and tell who the parties are, I will consider it before leaving here.”

The attorneys for the defendant in their argument urged that the sentence imposed upon the defendant was imposed by the court through passion and prejudice, and that the punishment was excessive, and suggested, that, if the court found the defendant had due process of law, the sentence should be modified. The county attorney of Alfalfa county and the Attorney General in open court consented to a modification of the sentence.

The court, after carefully examining the facts and circumstances as disclosed by the récord, accepts the'agreement of the attorneys for the state and the defendant to a modification of the sentence, and modifies the judgment from death by electrocution to imprisonment for a period and term of 15 years.

The judgment and sentence is accordingly modified to 15 years, and, as so modified, is affirmed.

DOYLE, P. J., and EDWARDS, J., concur.


author: DOYLE, P. J.

text:
    S. G. BALDWIN et al. v. STATE.
    No. A-6297.
    Opinion Filed April 18, 1928.
    (266 Pac. 795.)

      T. C. Greer and W. H. Hussey, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

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

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

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

Upon the authority of the cases above cited, the judgment appealed from is reversed, and the cause remanded, with direction to dismiss.

EDWARDS and DAVENPORT, JJ., concur.


author: EDWARDS, J.

text:
    JIM PERDUE v. STATE.
    No. A-6721.
    Opinion Filed April 18, 1928.
    (266 Pac. 514.)
    O. H. Whitt and J. B. Whitt, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pittsburg county on a charge of arson in the first degree and was sentenced to serve a term of five years in the state penitentiary.

The record discloses that in the nighttime of the day charged a barn and private garage in the possession of John Jones was destroyed by fire. An examination was made about the premises, and tracks leading from the mail box opposite the residence of Jones were followed into the field near by. Also tracks at the scene of the burning were found leading down into the field, and there is testimony that these tracks were closely examined, and that later a pair of shoes belonging to defendant were fitted into some of these tracks and that they appear to have been made by these shoes. Eunice Ashburn, a young woman about 18 years of age, and Who is wholly unlearned and who is deformed as to shape of head and with a questionable mental condition, was suspected with having set the fire. It appears that several times about the time of the burning she was seen in the company of defendant. She was arrested and placed in jail, and after being so incarcerated for one day she told the officials that defendant had told her he burned the garage and the circumstances connected therewith. There was some evidence of ill feeling on the part of defendant toward John Jones on account of an insult or fancied insult by Jones to defendant’s wife. The defense is an alibi, and such defense is supported by several witnesses most of whom .are related to defendant. Defendant denied any connection or knowledge of the burning of the property charged. He also offered evidence of previous good reputation, testified to by a number of high-class citizens of the county.

It is first contended that sufficient appears in the evidence to indicate the witness Eunice Ashburn may have been guilty of the offense with which defendant is charged, and that this condition of the record required an instruction upon whether or not she was an accomplice, and that in the event the jury so found a conviction could not be had on her testimony. The evidence does suggest that the witness Eunice Ashburn might have set the fire upon which the charge is predicated, but there is no evidence on the part of the state that she was an accomplice of defendant. The theory of def endant is that he had no connection whatever with the offense and on his theory Eunice Ashburn could not have been an accomplice. The court properly did not instruct on the law applicable to an accomplice. Shields v. State, 32 Okla. Cr. 344, 240 P. 661.

It is also argued that the evidence is insufficient to sustain the judgment. The evidence is not overwhelming and would be entirely insufficient except for the testimony of Eunice Ashburn, and while, as we have said, this witness appears to be abnormal both physically and probably mentally, yet if is not contended that she is not so mentally deficient as to render her incompetent as a witness. The jury saw and heard this witness; it was particularly within their province. to weigh her testimony and determine what weight and credibility should be given it.

Complaint is next made that the court permitted evidence of ether offenses wholly unrelated and unconnected with the offense charged to be submitted to the jury. In the course of the trial evidence was admitted over defendant’s objection of some four or five other fires of apparent incendiary origin in the neighborhood within a short period of time prior to the offense charged. We do not know the theory of the state in offering this testimony. There is no evidence that defendant had any connection with any of these fires, though some of the questions indicate he may have been charged with crime by reason of some of them. These other fires are unrelated to the offense charged, and evidence concerning them does not tend to throw any light on the fire in question or disclose that defendant had any motive for causing any of them or that they show system or plan. They are not limited by any instruction of the court, and the admission of this testimony must have created an inference in the minds of the jury that defendant was connected with them. It is settled by many decisions of this court that in the trial of an accused charged with crime the general rule is that proof of the commission of other crimes is inadmissible unless such proof falls within some of the well-recognized exceptions, as for instance where such evidence is relevant to the question of his guilt for the offense with which he is charged, or where the other offense forms part of the res gestae or sheds light upon the question of guilt in the case on trial, or which tends to prove malice, motive, or scheme of criminal action. In a case where the guilt of an accused is conclusively proven it might be that evidence of this nature would not be sufficiently prejudicial to require a reversal. But upon a consideration of the entire record here, the admission of this evidence is prej-udicially erroneous and requires a reversal.

The case is reversed and remanded.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    IRA BOGARD v. STATE.
    No. A-6296.
    Opinion Filed April 18, 1928.
    (266 Pac. 517.)
    C. C. Wells, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was by information filed in Greer county charged with the crime of transporting spirituous liquors, to wit, about one-half pint of whisky, from a point about one-quarter of a mile east of the Rock Island Railway Company depot to a point near the public square, in the city of Mangum, said county and state.

The defendant entered his plea of not guilty to the information; a jury was impaneled and, after hearing the evidence and argument of counsel, found the defendant guilty, fixing his punishment at a fine of $50 and imprisonment in the county jail for a term of 30 day!s. Motion for a new trial was filed and overruled and exceptions saved, and the case is in this court for review.

The testimony offered by the state is, in substance, as follows:

S. H. Tittle stated he was sheriff of Greer county, Okla.; he knew the defendant, Ira Bogard; he saw the defendant on the 20th day of December, 1925; defendant stated he got some whisky that day; he said he got it out east of town — I think this road out east of town. Question by the county attorney: “State whether or not he said he got back to town with it? A. Yes, he said he got back to town. My recollection he said he got a pint bottle of whisky; I am not sure if he said first where he went to get it; I believe he did say he got it in Pete Salina’s cafe.”

On cross-examination, the following questions were propounded and the following answers given:

“Q. Mr. Bogard did not swear to anything, you just took his word? A. He said he got to drinking, he said it was a kind of a drunken fight.”

On redirect examination, the witness gave the following answers to the following questions:

“Q. He admitted he had been conveying whisky, to you? A. Yes, Sir; he admitted that.”

E. W. Reeves called as a witness testified, in substance, to the same facts as witness Tittle, that the defendant made the same statement in his presence of having gotten some whisky and gone out in the country to drink it and came back to town. This, in substance, was all the testimony introduced by the state in support of the allega--tions. At the close of the testimony the defendant demurred to the evidence of the state on the ground that there was no evidence to show that the defendant transported liquor from one place in the county to another, and asked the court to find the defendant not guilty, which demurrer was overruled, and defendant excepted. Defendant did not offer any testimony.

Five assignments of error have been filed by the defendant. In this case the allegations in the information are that the defendant did willfully and unlawfully convey and transport intoxicating liquor in Greer county, to wit, about one-half pint of whisky from a point about one-quarter of a mile east of the Rock Island Railway Company depot to a point near the public square, in the city of Mangum, said county and state.

The assignment of errors we deem necessary to consider are the third and fifth assignments, which are as follows:

“(3) Said court erred in, admitting incompetent, irrelevent, and immaterial evidence on the part of defendant in error; to which objections and exceptions were duly saved.
“(5) The court erred in overruling motion of plaintiff in error for a new trial.”

It is the universal rule of law that whatever is necessary to allege in an information it is necessary to prove; the allegation in this information being that the defendant transported intoxicating liquor from one pint about one-quarter of a mile east of the Rock Island Railway Company depot to a point near the public square, in the city of Mangum, said county and state. In order to convict one charged with the crime of transporting it is necessary to allege in the information, and to prove by competent testimony, that it was transported by the defendant from a place — describing the place, if known — to a 'definite place in the state. The state relied wholly in this case upon statements alleged to have been made by the defendant in the presence of the witnesses Tittle and Reeves as to having gotten whisky and taking it from one place to another. The state offered no witnesses who claimed to have seen defendant with the whisky or to have seen him transporting it, nor do the statements attempted to be established by the state witnesses, alleged to have been made by the defendant, show any definite conveyance of whisky from one place to another. The testimony is insufficient to sustain a conviction. Brown v. State, 18 Okla. Cr. 509, 196 P. 967; Aycock v. State, 32 Okla. Cr. 302, 240 P. 1081; Jones v. State, 39 Okla. Cr. 195, 264 P. 638.

Upon a careful examination of the record and all the evidence we are of the opinion that the evidence is wholly insufficient to sustain a verdict of guilty, and the court erred in overruling defendant’s demurrer to the evidence and his motion for a new trial.

The case is reversed and remanded.

DOYLE, P. J„ and EDWARDS, J., concur.


text:
    Ex parte W. L. SANDERS et al.
    No. A-6927.
    Opinion Filed April 19, 1928.
    (266 Pac. 1119)
    W. N. Maben, for petitioners.
    Edwin Dabney, Atty. Gen., and Byron Kirkpatrick, Co. Atty., and W. L. Coffey, Deputy Co. Atty., for respondent.
   PER CURIAM.

In this proceeding W. L. Sanders and Della Sanders, by their attorney, have presented to this court a petition alleging that they are unlawfully imprisoned in the county jail of Tulsa county by R. B. 'Sanford, sheriff of said county, and that they are so held under a commitment wherein petitioners are charged with the crime of conjoint robbery with firearms. Petitioners aver that they are not guilty of the crime of conjoint robbery as charged, and that the proof of their guilt of said crime is not evident, nor the presumption thereof great. Attached to said petition is a duly certified transcript of the evidence taken on the preliminary examination and on application for bail in the district court of Tulsa county. Following the hearing on the 8th of March, 1928, and upon a consideration of the testimony, it was adjudged that petitioners are entitled to be admitted to bail, and it was ordered that said petitioners be admitted to bail in the sum of $20,000, bond to be conditioned as required by law. Said bond to be approved by the court clerk of Tulsa county, and upon the approval he shall notify the sheriff of Tulsa county, who thereupon shall discharge said petitioners from custody.


author: PER C'URIAM.

text:
    Ex parte DANIEL HARVEY.
    No. A-6976.
    Opinion Filed April 19, 1928
    (266 Pac. 1118.)
    L. A. Justus, Jr., for petitioner.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for respondent.
   PER C'URIAM.

In this proceeding the petitioner, Daniel Harvey, filed in this court on April 11, 1928, his duly verified petition, alleging that he is»unlawfully imprisoned in the county jail at Tahlequah, Cherokee county, by Ben Wade, sheriff of• said county; that he is so held under a commitment issued on the 6th day of April, 1928, after a preliminary examination wherein he was held to the district court to answer to the charge of statutory rape. Petitioner avers that he is a full-blood incompetent Osage Indian, that he is not guilty of the crime of rape as charged, and that the proof of his guilt of the crime charged is not evident, nor the presumption thereof great; that heretofore he made application to J. T. Parks, district judge, for bail on said charge, and said application was denied. Attached to' said petition is a transcript of the testimony taken on the preliminary examination. Following the hearing on April 11, 1928, and upon a consideration of the testimony, it was adjudged that petitioner is entitled to be admitted to bail, and it was ordered that said petitioner be admitted to bail in the sum of $10,000, said bond to be conditioned as provided by law and to Me approved by the court clerk of ''Cherokee county.


text:
    S. J. OWEN v. STATE.
    No. A-6292.
    Opinion Filed April 21, 1928.
    (266 Pac. 514.)
    Percy Powers, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Greer county, charged with manufacturing intoxicating liquors, to wit, about seven gallons of beer, and was sentenced to imprisonment in the county jail for 30 days and to pay a fine of $50 and costs. Motion for a new trial was filed and overruled, and exceptions saved. An appeal was taken from the judgment and sentence of the trial court; petition in error and case-made were filed in this court June 3, 1926.

Under the rules of this court, where an appeal is not supported by brief, and no appearance is made for plaintiff in error, it is assumed that the appeal has been abandoned and is without merit.

We have carefully examined the record, and find that the information charges an offense; that the evidence tends to support the charge; that the instructions by the.court were reasonably fair to the plaintiff in error; that there are many minor errors committed by the court in the introduction of the testimony, but, in view of the fact that the appeal has not been followed up by the defendant, we do not deem them sufficient to justify this court in reversing the case.

The judgment is affirmed.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    WILL WOFFORD v. STATE.
    No. A-6035.
    Opinion Filed April 21, 1928.
    (266 Pac. 494.)

      H. P. Hosey, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Mc-Curtain county on a charge of violating'the prohibitory liquor law and was sentenced to pay a fine of $250 and to be confined in the county jail for a period of 90 days.

The record discloses that at the time charged the sheriff with a search warrant went to the premises of defendant, which were in the extreme northeastern comer of McCurtain county, and made a search of the premises and residence and found about a gallon of whisky in different fruit jars, and a trapdoor in the barn, and under that a keg with a siphon appearing to have been freshly emptied of whisky, and three sacks of sugar. The wife of defendant broke the fruit jars containing the whisky, but some was preserved by the officers in a jug. Defendant testified that the officers procured only about three quarts of whisky; that he had that for his own use and not for sale.

The only contention argued is that the affidavit for a search warrant and the search warrant are insufficient for the reason that it does not sufficiently describe the place to be searched. The affidavit describes the place to be searched as “the premises of Will Wofford, about three miles north of Cheatham, Ark., in the county of McCur-tain, state of Oklahoma.” The search warrant is as follows:

“Proof by affidavit having this day been made before me by J. R. Jones, that (a) large quantities of intoxicating liquor, mixtures and compounds are being kept on the. premises of Will Wofford, you are therefore, in the name and by the authority of the State of Oklahoma, hereby commanded that, taking all necessary assistance, you immediately, in the daytime, make diligent search of the above-described premises, and if any or all of the above described property' be found upon said premises or upon the person of the said Will Wofford that you take the same into your custody, and forthwith arrest the said Will Wof-ford and bring him, together with said property, forthwith before me at my office in Idabel in said county, then and there to be dealt with according to law.”

Section 7012, Comp. St. 1921, providés that no warrant shall issue but upon probable cause supported by oath or affirmation describing as particularly as may be the place to be searched and the person or thing to be seized. Section 7009 provides that when it shall be made to appear to any judge of any court of record or justice of the peace that there is probable cause to believe that liquor is being kept for the purpose of violating the prohibitory law, such officer may issue a warrant directed to any peace officer in the county commanding him to search the premises described and designated in such complaint and warrant. This court, in conformity to the authorities, has held that the description in the warrant shall be sufficiently definite that no discretion is left to the officer making the search. Langham v. State, 35 Okla. Cr. 57, 248 P. 349; Turknett v. State, 36 Okla. Cr. 401, 254 P. 985.

The prohibition enforcement act does not provide a form for search warrant. But the general law as to search warrant, section 2881, Comp. St. 1921, does set out a form providing that the search warrant shall describe the place to be searched with reasonable particularity. The officer derives his authority to make the search from the warrant; the court should not require a technical description of the place to be searched but it should be sufficient to show jurisdiction and not so broad as to permit a search generally, but should limit the search by reasonable certainty to the particular place described. Cornelius, “Search and Seizure,” §116 et seq.

The recital and description in the warrant before us is not sufficient under any authority we have been able to find. It will be seen that no description whatever is contained in the warrant other than “the premises of Will Wofford.” The place to be searched is not located in any town, township, community, upon any highway, nor even within the county of McCurtain, or state of Oklahoma. This lack of description under the provisions of sections 2881, 7009, 7012, Comp. St. 1921, renders the warrant invalid. All the evidence having been obtained by search under an invalid search warrant, the case is reversed and remanded.

DOYLE, P. J., and DAVENPORT, J., concur.


author: DOYLE, P. J.,

text:
    Ex parte FOREST KING.
    No. A-6929.
    Opinion Filed April 23, 1928.
    (266 Pac. 511.)

      I. F. Long, for petitioner.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.,

This case originates in this court by an application for writ of habeas corpus on the part of Forest King. From the petition, and return to the rule to show cause issued thereon it appears that on the 2d day of February, 1926, petitioner entered his plea of guilty in the district court of Osage county for the crime of larceny, and was by the district judge sentenced to serve a term of two years in the State Reformatory at Granite, and was at the same time paroled by the district judge during good behavior, he being then and there under 21 years of age; that said sentence was suspended under the provisions of section 2803, C. S. 1921; that thereafter, on or about the 23d day of February, 1928, he was charged by information with having violated his parole, and the same was by order of the court on said day revoked, and that petitioner was by reason of said order arrested by the sheriff of Osage county and placed in the county jail at Pawhuska.

It is averred that said restraint is illegal and unauthorized, for the reason that at the time the said parole was so revoked the two years’ sentence given him on the 2d day of February, 1926, had expired on the 2d day of February, 1928, and the district court or judge thereof had no right to revoke said parole, and that the order revoking the same was and is void; that therefore his restraint is illegal and unauthorized and without authority of law.

The rule to show cause, issued on the 8th day of March, 1928, was made returnable on the 12th day of March, and it was ordered that, pending the determination of the hearing, petitioner be released on his own recognizance.

The sections of our Code of Criminal Procedure authorizing the suspension of sentence are sections 2803 and 2804, C. S. 1921, and were construed in the case of Ex parte Eaton, 29 Okla. Cr. 275, 233 P. 781. In the-opinion it is said:

“We believe that the sections of the statute above set out are constitutional and do not invade the province of the Governor, or chief executive, of the state in extending executive clemency. In this particular, executive clemency is to be distinguished from judicial authority, and the question for determination is: Does the district court have power -under the statute above quoted to revoke the suspended sentence after the time covered by the sentence had run? It will be observed that section 2804, supra, requires the person so released to ‘to report to the judge of the court wherein convicted, at each succeeding term during the pendency of said judgment, or when required by the court or judge.’ We think the statute is clear, but if there is any ambiguity it should be resolved in favor of the person sentenced. It was evidently the legislative intent that in case of sentence imposed upon a minor other than for certain specific offenses who liad previously borne a good reputation and had not been convicted of any crime, such person should not be incarcerated if, during the term of the sentence, he conformed to certain conditions by reporting to the court, abstaining from' associating with objectionable persons, and other conditions, and if before the expiration of the term of the sentence such person did violate the terms of his parole or suspended sentence, the court had the power to revoke the same and enforce the original sentence. After the expiration of the term of the sentence, he was no longer required. to¡ report, and the sentence was discharged. It was certainly not the intention of the lawmakers to hold the sentence -over the head of the person paroled so long as he should live, but only during the pendency of the judgment. To hold otherwise would be contrary to the spirit and policy of the law.”

It appearing that the term for which the petitioner was sentenced having expired, the judge of the district court was without power to enforce the original judgment.

On the authority of Ex parte Eaton, supra, the writ is awarded, and petitioner discharged.

EDWARDS and DAVENPORT, JJ., concur.


text:
    CHARLIE SWAIN v. STATE.
    No. A-6534.
    Opinion Filed April 23, 1928.
    (266 Pac. 510.)
    W. N. Maben and J. T. Levergood, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the superior court of Pottawatomie county of the crime of illegal possession of intoxicating liquor and was sentenced to pay a fine of $400 and to imprisonment in the county jail for six months. To reverse the judgment, an appeal was taken by filing in this court March 18, 1927, a petition in error with transcript, which transcript fails to show the judgment and sentence from which the appeal was taken.

On April 21, 1928, his counsel of record filed a suggestion of the death of plaintiff in error, Charlie Swain.

Upon the record before us we are of opinion that the appeal in this case was never properly perfected.

It is therefore considered and adjudged that the appeal herein be dismissed, and the cause remanded to the lower court, where a proper order on the question of abatement of the action may be made. Mandate forthwith.