text:
    V. O. BROWN v. STATE.
    No. A-10954.
    July 20, 1949.
    (208 P. 2d 1143.)

      W. L. Steger, Durant, for plaintiff in error,
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

Plaintiff in error above, defendant in error below, V. O. Brown, was charged by information in the district court of Bryan county, Obla., with the crime of murder, alleged to have been committed on or about July 22, 1946, on the person of Joe Pangle by means of a pistol. The defendant was tried and convicted by jury of manslaughter in the first degree, his punishment fixed at four years imprisonment, and judgment and sentence pronounced accordingly. From that judgment he lodged this appeal herein on October 14, 1947.

The Attorney General has filed a motion to strike the case-made. He alleges therein that the verdict of guilty was returned on April 18, 1947; that judgment and sentence was pronounced on April 24, 1947, and on that date motion for new trial was filed. An amended and supplemental motion was filed on May 10, 1947. On April 24, 1947, the defendant gave notice of his intention to appeal to this court, which notice was in writing and was served on the county attorney, hut no such notice was given in open court, nor was any order at that time entered extending time to make and serve case-made. On May 13th, motion for new trial was overruled, which was 19 days after judgment and sentence was entered. When the motion for new trial was overruled, the defendant gave notice in open court of his intention to appeal to this court, and an extension of 60 days from that date was granted in which to prepare and serve the case-made. The later act of the court in so doing was a nullity under the provisions of Tit. 22 O. S. A. § 1059, 1941, which says in part:

“It shall be the duty of the court to provide for the preparation [and] settling of a case-made in all respects as in civil cases.”

And, Tit. 12 O. S. A. § 958, 1941, in relation thereto which provides in part as follows:

“The case so made, or copy thereof, shall, within fifteen days after the judgment or order is rendered, be served upon the opposite party or his attorney. * * * it shall be a sufficient service of the case-made in such case, when it, together with a copy thereof, is filed in the office of the clerk of the trial court within the time allowed by law, or order of court extending the time.”

It is, therefore, apparent that the granting of an extension for 60 days on May 13, 1947, was ineffective, in view of the fact that such request did not come within the 15 days allowed by the foregoing statutes for preparing and serving the case-made, or within the time fixed by the court extending the same. In other words, the judgment became final on May 9, 1947, and the attempt to prevent its finality by the extension granted on May 13, 1947, came too late. It had been extinct for four days. The trial court has no power to extend the time for making and serving the case-made after the time allowed by statute or granted by a previous extension of time by the court has expired. The lapse of an appeal in situations, such as the one at bar, occurs when counsel erroneously believes that the appeal is from the order overruling the motion for new trial. The time for perfecting an appeal in a criminal case dates from the time of entry of the judgment and sentence and not from the time overruling the motion for new trial. See Cherry v. State, 61 Okla. Cr. 376, 69 P. 2d 407, and other cases therein cited.

Therefore, this appeal not being perfected by case-made within the time allowed by law is ineffective.

However, the defendant may at any time within the six months allowed by law perfect his appeal by petition in error and transcript under the provisions of Tit. 22 O.S.A. § 1060, 1941. In this connection our court has held: If the first method is pursued, and if for any reason the case-made is fatally defective, the appeal will be considered upon the transcript, provided it is properly certified by the clerk. Mathis v. State, 18 Okla. Cr. 199, 194 P. 278. But, under such conditions we are limited in our inquiry to fundamental errors. A transcript does not present for review the proceedings involving such matters as, order on motion for a change of venue, nor order overruling motion for continuance, application for leave to withdraw plea of guilty, nor order overruling motion for new trial. Smith v. State, 54 Okla. Cr. 348, 21 P. 2d 51. Moreover, it does not present for review errors which require examination of the evidence taken at the trial. Sparks v. State, 72 Okla. Cr. 283, 115 P. 2d 277.

Therefore, in an examination of the transcript in the case at bar, we are confined to consideration of only fundamental errors. We find the information sufficient and unchallenged by demurrer. The only questions urged by the defendant are questions in relation to the admissibility and sufficiency of the evidence. These cannot properly be urged under this appeal. Nevertheless, we have examined them and found them to be without merit. The instructions contained no fundamental error.

The judgment is within the charge, the sentence is in keeping with the jury’s verdict and within the limits of the law. The proceedings appear to be regular, and the transcript contains no fundamental or prejudicial error. The judgment is accordingly affirmed.

JONES, P. J., concurs.


source: Caselaw Access Project

author: JONES, P. J.

license: Public Domain

text:
    Ex parte HENRY A. PERRY.
    No. A-11271.
    July 20, 1949.
    (208 P. 2d 967.)
    Brown Moore, Stillwater, and Jess Pullen, of Oklahoma City, for petitioner.

      Granville Scanland, Co. Atty., and Hubert Gibson, Asst. Co. Atty., both of Oklahoma City, for respondent.
   JONES, P. J.

This is an original proceeding in ha-beas corpus instituted by the petitioner, Henry A. Perry, for the purpose of being admitted to bail upon a charge of murder now pending against him in the district court of Oklahoma county.

The verified petition alleges that the petitioner is now confined in the county jail of Oklahoma county, pursuant to a commitment issued by a magistrate of Oklahoma county ordering the defendant to await trial in the district court on a charge of murder. The petition further alleged that petitioner had filed his application to be admitted to bail in the district court of Oklahoma county, but bail had been refused.

At the hearing before this court, the petitioner testified at length and was cross-examined by the county attorney concerning the alleged commission of the crime of murder upon one E. E. McFerran. Three other witnesses testified in support of the petition concerning threats to kill the said defendant which were made by the deceased and they also testified that they told the defendant prior to the homicide of the threats that were made against him by the deceased. No evidence was offered by the state except a transcript of the testimony taken at the preliminary examination.

We shall not make any comment upon the evidence for the reason that this cause will later be tried, and such comment is not necessary in the disposition of this particular matter.

In the case of Ex parte Sistrunk, 84 Okla. Cr. 17, 178 P. 2d 627, it is said:

“Upon application for bail by writ of habeas corpus, after commitment for capital offense by a magistrate, the burden is upon the petitioner to show that he is illegally deprived of his liberty and entitled to bail.
“A mere conflict of testimony even upon a vital issue, does not of itself entitle a defendant charged with a capital offense to be admitted to bail. The evidence must be considered as a whole, and when considered, unless the proof is evident or presumption great that defendant is guilty as charged and that upon conviction he probably would receive a life sentence or death, he is entitled to bail.”

We are convinced after hearing the evidence that the petitioner has sustained the burden of showing that he is entitled to be admitted to a reasonable bond pending the trial of said cause.

It is therefore ordered that petitioner be admitted to bail in the reasonable sum of $20,000, said bond to be conditioned as provided by law, to be approved by the court clerk of Oklahoma county; that when said bond is given and approved by the court clerk of said county, petitioner be discharged from custody.

BRETT, J., concurs.


author: BRETT, J.

text:
    ROY YOUNG v. STATE.
    No. A-11003.
    July 27, 1949.
    (208 P. 2d 1141.)

      H. Tom Eight, Jr., of Olaremore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   BRETT, J.

The defendant, Roy Young, was charged by information, tried before a jury, and convicted of the crime of grand larceny of $210 in cash. The crime was alleged to have been committed on or about May 1, 1917, in Claremore, Rogers county, Okla. After the verdict of guilty, the defendant was sentenced to serve a term of one year in the penitentiary.

The Attorney General has filed no brief herein and has orally expressed to the court his intention not to do so because of the strength of the defendant’s position, both from the evidentiary as well as the legal standpoint.

The contention of the defendant is that the court erred in overruling his demurrer to the evidence, and at the close of all of the testimony it erred in not instructing the jury that it was their duty to return a verdict of not guilty against the defendant, Roy Young.

This contention is based upon the following facts: On the day in question, Sophia Hilton and her husband went to Crane’s restaurant in Claremore, where they had dinner and drank some beer. There they met Roy Young, whom they had previously known. Accompanying the defendant Young, was a girl by the name of Hazel Yinita. Mrs. Hilton paid for the dinner and her husband purchased 12 bottles of beer to take home and drink. In this connection, the state offered evidence to the effect that when Mrs. Hilton paid for the dinner, Roy Young was pressing forward and offering to pay for the beer .her husband had purchased, while closely watching her purse. Mrs. Hilton said she took out a $20 bill to pay for the dinner; that.Young was standing by her husband and there was a table between the defendant, her husband and herself. Mrs. Hilton said that she had over $200 in her purse at the time of the foregoing transaction. The four of them left the restaurant about 4:30 p. m. and went to the Hilton home. There, Hilton got his fiddle and Young a guitar, and they had music. Subsequent developments prove the four of them undoubtedly drank beer as well. Mrs. Hilton remembered laying her purse on the kitchen cabinet. Later her purse disappeared. The Vinita woman suggested that she may have left it on the table in the restaurant. On this suggestion, Mrs. Hilton and the Yinita woman got in the Hilton car and went to the restaurant. While there, the Yinita woman left the restaurant and disappeared, leaving in another ear. Mrs. Hilton tried to follow her; but her car stopped and she could not start it, and so she lost her.

The Highway Patrol arrested Mrs. Hilton for drunkenness, and kept her in jail that night. The next day she paid a fine for drunkenness. Later, the sum of $210 was recovered by the sheriff from Leonard Stewart, a taxi driver, who apparently was the person who drove Hazel Yinita away from the cafe. It developed from the evidence that the money was stolen by Hazel' Vinita at the Hilton home, and given to the taxi driver. First, she gave him $100 upon leaving the cafe. Later, Hazel Yinita returned about 2:30 a. m. to the Hilton home to get the rest of the money and to get Roy Young, defendant. The state’s case discloses that she gave the taxi driver an additional $100 upon coming out of the Hilton home, which made the total of $210, but told him Young was drunk and she could not get him up, that Avas the reason he did not come out with her. When she gave the taxi cab driver the additional $100, the evidence discloses that she said “We Avill see that it is split three ways”. It is pertinent to observe that the Yinita woman did not testify.

The foregoing facts constitute the entire evidence upon which the defendant Young was tried, convicted, and sentenced. By Avay of summary, all the evidence tending to connect him with the crime was that he was seen watching Mrs. Hilton’s purse when she paid her bill at the cafe; that he was with the Hilton’s at their home when Mrs. Hilton missed her purse, and the hearsay statement of the taxi driver that the money was to be split three way (The record is entirely silent as to be-tAveen whom the split was to be made. There is nothing that discloses that Young was to be one of the participants of the split.). The latter being hearsay evidence was clearly inadmissible and the court erred in not sustaining objection thereto. This court has held a conviction based upon hearsay evidence, or suspicion, is not obtained by due process of law and violates the Constitution of both the State and the Nation. Smith v. State, 59 Okla. Cr. 312, 58 P. 2d 347. But the evidence as a whole hardly rises even to the dignity of suspicion, much less that required by the law to support a conviction. There is not a scintilla of evidence tending to connect Young with the theft of the purse and the money or the split. The prosecution would fail for this reason alone.

Moreover, Stewart was an accomplice whose testimony, even if the same had been substantial, under the law required corroboration. There is not even slight evidence to corroborate the feeble attempt by the state, through him, to connect the defendant with the crime.

This court has repeatedly held that a conviction will not stand upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the crime. Further we have held corroboration is not sufficient if it merely shows commission of an offense, or circumstances thereof, and suspicious circumstances standing alone are not sufficient to furnish corroboration. Howerton v. State, 65 Okla. Cr. 457, 88 P. 2d 904; Fitzgerald v. State, 85 Okla. Cr. 326, 188 P. 2d 396. To hold otherwise would be a violation of both the spirit and letter of the law. Hankins v. State, 62 Okla. Cr. 252, 71 P. 2d 119.

For the foregoing reasons, the trial court erred in not sustaining the defendant’s demurrer to the- evidence and in not directing a verdict in favor of the defendant. For all the above said reasons, the judgment and sentence herein is reversed.

JONES, P. J., concur.


text:
    Ex parte W. E. GAMMEL.
    No. A-11118.
    July 27, 1949.
    (208 P. 2d 961.)

      Joe Reily, of Shawnee, and Rowe Cooke, of Oklahoma City, for petitioner.
    Randall Pitman, of Shawnee, for defendant.
   JONES, P. J.

This is an original action in habeas corpus instituted by the petitioner, W. E. Gammel, for the purpose of securing his release from confinement in the city jail at Shawnee.

In the verified petition filed herein it is alleged that the petitioner is the owner and operator of a business located in the city of Shawnee known as the Century Club and that his business consisted in selling nonintoxicating beverages containing not less than one-half of one per cent, nor more than 3.2 per cent of alcohol measured by weight; that he has procured a permit from the State of Oklahoma and the county judge of Pottawatomie county, and has otherwise met all of the provisions of the state laws providing for and relating to the sale of such beverages.

That the city of Shawnee, a municipal corporation, on July 8, 1948, duly passed a purported emergency ordinance for the purpose and with the intent to control and regulate the sale of 3.2 beer; that said ordinance reads as follows:

“Now, Therefore, Be It Ordained By The Mayor And Board Of Commissioners Of The City Of Shawnee, Oklahoma:
“Section 1. It shall be unlawful for any person, firm or partnership or corporation to maintain, establish or operate any place within the City of Shawnee, Oklahoma, where 3.2 beer is sold at retail in violation of any of the provisions of this ordinance, or upon failure to perform any conditions required herein for the regulation of said place.
“Section 2. It shall be unlawful for any person to sell or serve 3.2 beer, to any person under the age of twenty-one years, or to a known habitual drunkard, or to any person under the influence of intoxicating liquor, regardless of whether said beer is to be consumed on the premises where sold, or carried away.
“Section 3. It shall be unlawful for the owner or operator of, or any person in charge of any place where 3.2 beer is sold, to use or employ any minor person under twenty-one years of age, to sell or serve 3.2 beer.
“Section 4. It shall be unlawful for the operator or owner of any beer tavern or beer parlor, or person in charge of same, to knowingly permit any minor, under the age of twenty-one years, dr any unescorted female person, not an owner or employe, to enter into, frequent, or loiter in or about a beer tavern or beer parlor.
“For the purposes of this Ordinance, a Beer Tavern or Beer Parlor, is defined to be any place where 3.2 beer is sold for consumption on the premises, where 15 per cent or more of the monthly dollar volume of sales or income from said place or business, excluding income from dominoes and pool, is derived from the sale of 3.2 beer.
“Section 5. No beer tavern or beer parlor or place where 3.2 beer is sold shall use any curtain or screen, or painted or otherwise discolored glass front, door or window of said place in excess of three feet in height from the floor of said premises so as to obstruct the view of the- inside premises occupied by said beer, tavern from the outside or sidewalk or street running along in front of or beside the same.
“Section 6. It shall be unlawful for any person to sell or serve beer at retail in any booth or enclosed room or to permit the same to be consumed therein. Providing that partitions in said places not' exceeding 36 inches in height from the floor shall not be deemed to be a booth as defined in this Section.
“'Section 7. All places where 3.2 beer is sold at retail shall be deemed a public nuisance and a violation of this ordinance under any one of the following conditions :
“a. When any gambling, game of chance or any betting is permitted or carried on in such place.
“(b) When any disorderly conduct is permitted in such place.
“(e) When beer is sold to any person under twenty-one years of age.
“(d) When any intoxicating liquors are bartered, sold or given away or otherwise furnished, or the same is permitted to be done in such place.
“(e) When any person operating said place shall be guilty of public drunkenness.
“(f) When any drinking or intoxicating liquor is permitted in such place.
“(g) When the operator of such place has in his possession or on the premises in which said beer business is being operated a Federal excise or occupational tax stamp or receipt designating such person or premises as the person or place for dealing in liquor or evidencing the payment of a tax for being a dealer in such liquor.
“(h) When any loud, boisterous, unusual, noisy, profane or vulgar language is habitually or continuously permitted or tolerated in such room or place.
“(i) When any prostitute, vagrant, gambler, habitual drunkard, drug addict, lewd or immoral characters, habitual law violator, bootlegger, or person having a reputation of being a bootlegger is permitted to loaf and loiter in and about such place.
“(j) When said place is kept is an unclean and unsanitary condition.
“ (k) When said place is not provided with adequate lighting and ventilation.
“(1) When such place is permitted to remain open contrary to the provisions of State law.
“(m) When said place is maintained and operated in violation of any of the sections of this ordinance.
“Section 8. It shall be the duty of the City Police to make frequent inspection of all places; of business where beer is sold at retail for the purpose of enforcing the provisions of this ordinance, and when any person or persons are found to be violating any of the terms of this ordinance, the same shall be reported by the Police Department to the City Judge and the City Attorney, and it shall be the duty of the City Judge and the City Attorney to report the same to the County Judge and the County Attorney and request the County Judge to cancel the license of any person found guilty of violating this ordinance.
“Section 9. Any person, firm or corporation violating any of the provisions of this ordinance, either by doing anything which is prohibited or by failng to do anything which is commanded, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished in any amount not exceeding $100.00 and cost, or imprisonment in the City jail of not more than thirty days or by both such fine and imprisonment, provided that each day of such violation shall constitute a separate offense.
“Section 10. That all ordinances and parts of ordinances in conflict herewith are hereby repealed.
“Section 11. In the event that any portion of this ordinance shall be held unconstitutional or invalid or ineffective for any reason, by any court of competent jurisdiction, whether it be a section, paragraph, clause, phrase or work, such holding shall not affect the validity of the remaining and other provisions of this ordinance, but the same shall continue in full force and effect notwithstanding such holding, and the City Commission hereby declares that it would have passed the valid and effective parts and provisions of this ordinance without the inclusion of any parts or provisions hereof which may be deemed, adjudged or decreed to be invalid, unconstitutional, or ineffective.
“Section 12. That for the preservation of the public peace, health and safety, an emergency is hereby declared to exist, by reason whereof this ordinance shall be in effect immediately from and after its passage, approval and publication.
“Passed and approved this 8th day of July, 1948.
“That the petitioner in the operation of said business and long prior to the adoption of said ordinance had caused his front window to be painted in excess of thirty-six inches in height and had constructed wooden booths in the interior of his building for the benefit of his customers which excéeded thirty-six inches in height from the floor.
“That your petitioner was charged in the Municipal Court of the city of Shawnee with the violation of Sections 5 and 6 or said ordinance and on the 13th day of August, 1948, was tried, found guilty and sentenced to pay a fine of <¶25 and upon his failure to pay the same was committed to the city jail where he now remains; that said Sections 5 and 6 of said ordinance are void, invalid, and unconstitutional for the following reasons:
“(a) That they attempt to regulate private business.
“(b) That they are in direct conflict with the general laws of the State of Oklahoma in regulating the sale of non-intoxicating beverages.
“(c) That they constitute an unreasonable, arbitrary and oppressive regulation of a lawful business and are not a valid exercise of the police powers. ^
“(d) That they are an unreasonable and arbitrary classification of a lawful business, and are class legislation and contravene Section 59 of Article 5 of the Constitution of the State of Oklahoma.
“(e) .That they are discriminatory in that they do not effect and apply to all classes engaged in selling nonintoxicating drinks and beverages in the City of Shawnee, Oklahoma, and their enforcement will not tend to promote the public health, safety and welfare.
“(f) That the enforcement thereof ivill deprive petitioner of his property without due process of law, and are and will be an invasion of his private rights.”
“That because said Sections 5 and 6 are invalid and unconstitutional a judgment and sentence based upon a violation of said sections would be a void judgment, etc.”

By way of response the Chief of Police admitted the arrest, prosecution and conviction of the petitioner for violation of sections 5 and 6 of said ordinance and further alleged that the city of Shawnee is a municipal corporation operating under a charter form of government; that under the police power of said municipality it had a lawful right to regulate the sale of 3.2 beer for the reason that the same contains alcohol and if taken in sufficient quantities will produce intoxication; that there are several places of business in the city of Shawnee devoted exclusively to retail sale of 3.2 beer, including that of the place of business operated by petitioner; that said ordinance No. 843 described in the petition was duly enacted for the purpose of enabling the police department to more caréfully and thoroughly inspect beer taverns and prevent law violations; that sections 5 and 6 specifically are necessary for the proper regulation of said beer taverns.

The petitioner filed a reply to the response in which he alleged that the decal painted on the front window of said petitioner’s tavern is not of sufficient height to prevent the citizens of the city of Shawnee, including police officers of said city, from viewing the interior from the sidewalk. A true photograph of said window was attached and made a part of said reply; that the booths of the petitioner contained in said building are not of sufficient height to prevent a policeman from observing the occupants therein. A photograph of said booths was made and attached as part of the reply.

At the hearing before this court the cause was submitted upon a transcript of the evidence taken in the district court of Pottawatomie county wherein the petitioner had attempted to obtain an injunction restraining the city from enforcement of said ordinance. The. district court in said hearing refused to enjoin the enforcement of said ordinance, but ruled section 4 invalid and no appeal was taken from the judgment. The city admits the invalidity of section 4 and asserts that they are not attempting to enforce said section of said ordinance.

However, the petitioner contends that the invalidity of section 4 affects the whole ordinance and that no section of said ordinance may be sustained because of the invalidity of section 4.

As we view this case, the issue may be decided by a consideration of the proposition presented by the petitioner that the ordinance is in an intolerable conflict with the general laws of the state.

In the recent case of Ex parte Pappe, 88 Okla. Cr. 166, 201. P. 2d 260, this Court held:

“1. Under constitutional provision for adoption of home-rule charter, city adopting such charter is accorded full power of local self-government and, as such, municipal corporation has power to enact, ordain and enforce ordinances for purpose of protecting public peace, order, health, morals, and safety of inhabitants, even though general statutes exist relating to same subjects. Const, art. 18, § 3(a).
“2. The provisions of a charter, adopted and approved in accordance with such constitutional provision, supersede all laws of the state in conflict therewith in so far as such laws relate to merely municipal matters.
“3. An ordinance passed under such charter provisions, which conflicts with the general laws of the state, must give way, and, while it may run concurrent with the general laws of the state, it may not run counter thereto.
“4. The Legislature and not the courts must determine the policy of the state to be voiced in statutory enactments. Legislative power, not wisdom, is the concern of the courts.”

In the body of the opinion it is stated:

“ ‘It has also been further held that such charter provisions, where they conflict with the general laws of the state must give way, and while they may run concurrent with the general laws of the state they must not run counter thereto. State ex rel. Burns v. Linn, 49 Okla. 526, 153 P. 826, Ann. Cas. 1918B, 139. In other words a municipality may move in the same direction as the Legislature but not contrary to or in opposite directions. 3 McQuillin on Municipal Corporations, section 894; Ex parte Johnson, 20 Okla. Cr. 66, 201 P. 533; Ex parte Johnson, 13 Okla. Cr. 30, 161 P. 1097.’ ”

The respondent contends that they are not moving contrary to the general law of the state and that said ordinance is a valid and reasonable exercise of the police power.

It is well settled that a municipality operating under a charter form of government, may under its police power adopt ordinances which are necessary for the preservation of public health, safety, morals and general welfare of society. Ex parte Johnson, 20 Okla. Cr. 66, 201 P. 533; Ex parte Pappe, supra; Ex parte Strauch, 80 Okla. Cr. 89, 157 P. 2d 201; Ex parte Hodges et al., 65 Okla. Cr. 69, 83 P. 2d 201.

At the time of the adoption of the ordinance herein involved, the Legislature had passed a general law regulating the sale of nonintoxicating beverages containing not less than one-half of one per cent of alcohol nor more than 3.2 per cent of alcohol by weight. Under this general law, a person before he may sell such beverage must first secure a permit issued by the county judge in the county wherein the premises for the sale of such beverage are located. The person applying for such permit must make a showing once a year and must possess certain qualifications, to wit:

1. He must be a person of good moral character.

2. He has never been convicted of violating the liquor laws or any of the gambling laws of the state or any other state of the United States within three years preceding the date of his application.

3. He must never have had any permit or license to sell such' beverages revoked in any county within 12 months preceding his application.

4. He must not be the holder of a retail liquor permit or license from the United States Government.

Laws 1947, p. 291, sec. 11, 37 O. S. Supp. § 163.11, as added in 1947.

Said general law further provides for the revocation of the permit upon five days notice to the person holding such permit for certain reasons, to wit:

1. Drunkenness of the person holding such permit.

2. Permitting any intoxicated person to loiter in or around his place of business.

3. The sale to any person under 21 years of age of such beverage for consumption on the premises.

4. Nonpayment of any of the taxes or license fees on complaint of the Oklahoma Tax Commission.

5. Violating any of the laws of the state commonly called prohibition laws or violating any of the gambling laws of the state, or permitting any one to violate said laws in such places.

6. Conviction for the violation of any of the laws of this state or United States for the sale or possession of intoxicating liquor within three years immediately preceding the issuance of the license.

7. Proof that the operator has in his possession or on premises of the business in which his business is being operated a Federal Excise or Occupational Stamp Tax or receipt.

“To move in the same direction” as that expression is used in the opinions of this court means that the municipalities of the state may adopt such reasonable regulations as conform to the state statutes and thereby make those acts which are a violation of the laws of the1 state-likewise a violation of the ordinances of the city.

In the instant case, if the city under its express or implied police power can enlarge upon the qualifications which the Legislature has seen fit to adopt as a prerequisite to the issuance of a license to sell beer, then the governing body of a municipality might adopt such regulations as would amount to the deprivation of the right of the individual to sell such beverage. Apparently, the Legislature entered this fertile field and passed such regulations as they thought should surround the sale of this beverage. If they had thought that further regulations in the cities or more populous areas might have been necessary, it would have been a small matter to have provided that such municipality might pass further regulations to control the sale of such beverages within such municipalities.

A part of the ordinance moves in the same general direction as the Legislative Act of 1947, supra. We speak more particularly of the provisions of section 7 of the ordinance; although some of the provisions of section 7 are an enlargement of the regulations prescribed under the general law. The only action taken by the Legislature to grant authority to municipalities to regulate the traffic in beer was the passage of the- act permitting the cities to collect a tax or license fee from retail dealers of $10 and $20 per annum, depending upon the nature of the business. Tit. 37 O. S. Supp. §. 163.10 as added in 1947.

The Supreme Court of Oklahoma in the case of Salaney v. Ferris, District Judge, 201 Okla. 236, 204 P. 2d 270, held that the qualifications set forth in the general law of the state pertaining to a retail dealer in beer were all of the qualifications that it was necessary for a person to possess in order to secure a license to sell such beverages.

The petitioner, Gammel, has met every qualification provided by the state law to sell beer which contains an alcoholic content of not more than 3.2 per cent measured by weight and has been issued a state and county license. No proof has been offered and no contention has been made by the respondent that the petitioner has violated any of the conditions of the statutes hereinabove named which would justify or require the county judge after five days’ notice to revoke his permit.to sell beer. Under the two sections of the ordinance herein attacked the petitioner in order to sell this beverage in accordance with the state and county licenses must change the appearance of the exterior of his place of business and destroy part of the furniture in the building. The question to retermine is when a municipality, under its express or implied police power, may step in and attempt to regulate by ordinance a private business expressly authorized by the general law of the state, which general law prescribes the qualifications and conditions under which such private business may operate.

It is our conclusion that, since the Legislature in its wisdom has defined a beverage containing not more than 3.2 per cent of alcohol as measured by weight as nonintoxicating, and has authorized its sale under certain restrictions and qualifications, no municipality may add to the restrictions or qualifications thus laid down by the Legislature. The Legislature has spoken so that there would be a uniform application of the law in each county and municipality of the state. Evidently, it was the purpose and intent of the Legislature to fully prescribe all of the conditions under which the sale of this so called nonintoxicating beverage may be had and not leave the prescription thereof to a town or city council which might change its mood frequently.

If the present city council of Shawnee can require that places of business where beer is sold shall not serve such beverage in booths that exceed 36 inches in height nor where the windows are painted above 36 inches from' the floor in order to enable policemen and the public in general who pass the place of business to see who is patronizing the place and drinking beer, and thus lessen its sale and potential evil consequences, the next city administration might decide that beer could only be sold in places that have their windows completely painted and in booths covered with curtains, so that no person drinking beer in sncb establishment could be seen by the public for the reason they did not want the public to see any one drinking this beverage because of the bad example and influence it might have on the public.

The city has a right to pass such ordinances as are in substantial conformity to the state law and prescribe that violation of said ordinances shall be punishable in the municipal court. In that way, the municipality is “running concurrently with the general laws of the state and not contrary to or in an opposite direction.”

The writ of habeas corpus as prayed is issued and respondent is ordered to release the petitioner from his custody.

BRETT, J., concurs.


text:
    Ex parte CHARLES STANLEY PRALL.
    No. A-11282.
    Aug. 3, 1949.
    (208 P. 2d 960.)

      Ralph Samara, of Oklahoma City, for petitioner.
    Granville Scanland, Co. Atty., and Hubert Gibson, Asst. Co. Atty., both of Oklahoma City, for respondent.
   JONES, P. J.

A criminal complaint was filed in the justice of peace court of Howard Boyer, in Oklahoma City, in case No. 8748, charging one. Martin Dale Edwards with the crime of sodomy, allegedly committed on one Charles Stanley Prall, a minor .

The county attorney, after the said Edwards was arrested, asked the justice of peace to compel .the said Charles Stanley Prall to enter into an undertaking in such amount as the. justice of peace might fix to guarantee his appearance as a witness at the preliminary examination of the said Edwards.

The court thereupon fixed the bond for the appearance of the said witness, Charles Stanley Prall, at $5,000, and committed him to the county jail until said bond was made.

Thereafter, in a habeas corpus action filed in the district court of Oklahoma county, the bond was reduced from $5,000 to $8,000.

This action was instituted in the Criminal Court of Appeals for the purpose of having the bond further reduced. At the hearing before this court, it was established that the said Prall is a minor whose parents reside in the State of Ohio; that he is a transient, unemployed person; that during the past two years he had hitchhiked into every state in the union; that he had no fixed place of abode and had no relatives or acquaintances in the State of Oklahoma.

Under such circumstances, this court felt that, the undertaking to require the attendance of said witness at the preliminary examination should be large enough so that the sureties on his undertaking would see that the witness would appear at the preliminary examination.

It is therefore ordered that the bond for the appearance of the said witness, Charles Stanley Prall, as a witness on behalf of the state at the preliminary examination of the said Martin Dale Edwards be and the same is hereby fixed in the sum of $3,000, said bond to be conditioned as required by law and approved by the said justice of the peace.

At the conclusion of said. preliminary examination, if an order is made directing that the said Edwards be held to await trial in the district court of Oklahoma county, it is ordered that the said Charles Stanley Prall, petitioner herein, be admitted to bond to appear as a witness in the district court in the amount of $250.

BRETT, J., concurs.


text:
    EDDIE WICKERS v. STATE.
    No. A-11034.
    Aug. 3, 1949.
    (208 P. 2d 1145.)

      O. D. Wilkinson, of Idabel, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

This is an appeal from the district court of McCurtain county, Okla., wherein Eddie Wickers was charged, by information, with the crime of grand larceny allegedly committed on the 15th day of July, 1947, by stealing and carrying away without the consent and against the will of Ernest Martin the sum of $71. He was tried by a jury, convicted of grand larceny and sentenced to one year in the penitentiary. A new trial having been denied, he appealed from the judgment and sentence by filing in this court on March 18, 1948, a petition in error with case-made attached. No briefs have been filed in this case and no appearance on behalf of the defendant was made at the time the said cause was set for hearing on May 18, 1949, or at any time subsequent thereto.

It has repeatedly been held that where the defendant appeals from a judgment of conviction and neither any brief is filed, nor appearance for oral argument made, this court will examine the record and the evidence, and if no error prejudicial to the substantial rights of the defendant is apparent, will affirm the judgment. Whitlow v. State, 85 Okla. Cr. 2, 184 P. 2d 253; Smith v. State, 70 Okla. Cr. 81, 104 P. 2d 1009; Walker v. State, 60 Okla. Cr. 302, 64 P. 2d 935; Owens v. State, 60 Okla. Cr. 324, 64 P. 2d 1234. Moreover this court will examine the record for jurisdictional and fundamental errors and where no errors appear, the judgment will he affirmed.

We have carefully examined the record and find that the information is sufficient to support thé conviction of grand larceny.

On the record before us, we have discovered no error which would warrant a reversal of the judgment of conviction, and it appears that the defendant was accorded a fair and impartial trial. The judgment of the district court of McCurtain county is accordingly affirmed.

JONES, P. J., concurs.


text:
    Ex parte JEAN BIRCH.
    No. A-11257.
    Aug. 31, 1949.
    (209 P. 2d 510.)

      O. S. McOuistion and John W. Tyree, both of Law-ton, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   JONES, P. J.

This is an original action instituted by the petitioner, Jean Birch, in which she alleges that she is unlawfully imprisoned at Lawton, Okla., by the sheriff of Comanche county, pursuant to a requisition-from the Governor of the State of Arizona, and a warrant issued by the Governor of Oklahoma, on June 6, 1949, for the delivery of the petitioner to the Agent of the State of Arizona, where she stands charged at Globe, Ariz., with the crime of grand theft.

The verified petition alleges that the prosecution in Arizona is not in good faith, but solely for the purpose of collecting a debt and to force the return of gifts which had been bestowed upon the petitioner by the complaining witness in the State of Arizona, during a time when the petitioner was secretary for the complaining, witness.

Prior to the filing of the action before the Criminal Court of Appeals, the petitioner had presented her application for habeas corpus to the district court of Comanche county, where the writ of habeas corpus was denied. Evidence was, taken before the district court by the official court reporter and a certified transcript of such evidence was attached to the petition herein in support of the allegations of the petition.

There is a dispute as to the facts. Under the evidence of the petitioner, the prosecution in Arizona was not instituted in good faith. However, the evidence of the respondent is to the contrary. We shall not detail the evidence for the reason that the writ of habeas corpus was denied and petitioner has been transported to Arizona to await trial and it is unnecessary for us to comment upon the evidence.

At the conclusion of the hearing before this court, the writ of habeas corpus was denied. Petitioner was delivered to the Agent of the State of Arizona and this opinion is rendered in .conformity to that ruling.

In Ex parte Patrick, 86 Okla. Cr. 61, 189 P. 2d 420, 421, it is held:

“When extradition papers required by statute are in proper form, only evidence admissible on habeas corpus to secure release from custody under warrant of extradition is such as may tend to prove that defendant was not in demanding state at time crime was alleged to have been committed, or that prosecution was not brought in good faith, 18 U.S.C.A. § 662; U.S.C.A. Const, art. 4, § 2, cl. 2.
“To be a ‘fugitive from justice’ within meaning of federal law dealing with extradition, it is sufficient that person legally charged in demanding state with commission of crime within such state when sought to be subjected to its criminal process for the offense, has left its jurisdiction and is found within the jurisdiction of asylum state upon whose executive requisition is made. 18 U.S.C.A. § 662.
“In habeas corpus proceeding seeking release from custody under warrant of extradition, there is a strong presumption that the prosecution in the demanding state is in good faith and in order to overcome this presumption, the proof on behalf of the petitioner must be clear, convincing, and without doubt.
“Criminal Court of Appeals will not weigh the 'evidence nor determine the question of the guilt or innocence of an individual held in custody under warrant of extradition, where it is shown that he is legally charged with the commission of a crime in the demanding state and that he was corporeally present in that state at the time of the alleged commission of the crime charged.”

The evidence herein was not clear, convincing, and without doubt, that the prosecution was in bad faith, or maliciously inspired.

In addition, we call attention to the fact that at the Twenty-Second legislative session, House Bill No. 37, known as the Uniform Criminal Extradition Act, was passed with the emergency clause attached and approved by the Governor of Oklahoma, on March 25, 1949, 22 O. S. Supp. § 1141.1 et seq. At the time of the institution of this action it was in full force and effect.

Among other provisions of said act, it is provided:

“The guilt or innocence of the accused as- to the crime of which he is charged may not be inquired into by the Governor or in any proceedings after the demand for extradition accompanied by a charge of crime in legal form as above provided shall have been presented to the Governor, except as it may be involved in identifying the person held as the person charged with the crime.” 22 O.S. Supp. § 1141.20.

Although it is unnecessary that we construe this section of the statute, under our view of the evidence we cite the same for the reason that apparently the Legislature has forbidden the courts in any proceeding from inquiring, into the guilt or innocence of thé accused, except as such matter may be corollary to the question of identification of the person held to await extradition as being the person charged, with the crime in the demanding state.

The writ of habeas corpus is denied.

BRETT and POWELL, JJ., concur.


author:
POWELL, J.
      POWELL, J.

text:
    LOYCE WILSON v. STATE.
    No. A-11046.
    Aug. 31, 1949.
    (209 P. 2d 512; 212 P. 2d 144.)
    On Rehearing Nov. 30, 1949.

      Welch, Bounds & Kile, Hugo, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

This is an appeal from the county court of Choctaw county, Okla., wherein Loyce Wilson, on June 16, 1947, was charged, by information, with the crime of pointing a pistol at another. He was tried on December 10, 1947, by a jury, convicted of tbe charge, and sentenced to serve 90 days in the county jail and pay a fine of $50. A new trial having been denied, he appealed from the judgment and sentence by filing in this court on April 13, 1948, a petition in error with case-made attached. No briefs have been filed in this case, and no appearance on behalf of the defendant was made at the time the said cause was set for hearing on May 18, 1949, or at any time subsequent thereto, although the court by its own action granted defendant until July 1, 1949, to file brief.

It has repeatedly been held that where the defendant appeals from a judgment of conviction and neither any brief is filed nor appearance for oral argument made, this court will examine the record and the evidence, and if no error prejudicial to the substantial rights of the defendant is apparent, will affirm the judgment. Whitlow v. State, 85 Okla. Cr. 2, 184 P. 2d 253, and cases therein cited. Moreover, this court will examine the record for jurisdictional and fundamental errors and where no errors appear the judgment \yill be affirmed.

On motion for new trial, defendant for first time raised the point that the information charged a felony, and that the county court did not have jurisdiction to try him of the charge as set out in the information. A motion in arrest of judgment set out the same grounds, but was by the court overruled. The petition in error charges lack of jurisdiction on the part of the trial court. It is claimed that though the crime charged constituted a misdemeanor, the allegations in the charging part of the information indicated a felony and that, therefore, the county court had no jurisdiction. This jurisdictional question merits comment. .

We baye carefully examined the record, and while the information is not a model, it is sufficient to support the conviction of pointing a pistol at another. In describing the manner and form of pointing the pistol, it was set out in the charging part:

“That the said defendant then and there being, did then and there wilfully, wrongfully and unlawfully point and discharge a certain weapon at and towards Hubert C. Reaves, Jr., thereby causing said leaden bullets from said gun held in the hands of him, the said Loyce Wilson, to strike and hit the car in which he, the said Hubert C. Reaves, Jr., was then and there driving, without justifiable cause or provocation. * * *”

From the facts recited it is apparent that the county attorney might have charged the defendant with a felony. He could have charged, for instance, assault with a dangerous weapon (Tit. 21 O.S.A. § 645), but the charge was pointing a pistol at another, a misdemeanor (Tit. 21 O.S.A. § 1279), and defendant was tried for the lesser crime, a charge that was within the jurisdiction of the county court, and the penalty assessed by the jury was the minimum penalty that could be assessed. See Tit. 21 O. S. A. § 1280.' Just because it is indicated that the county attorney from the recitations of the manner and form of “pointing a pistol at another”, and from the evidence at the trial, could have filed a felony charge, affords the defendant no just ground for complaint, it appearing that the action on the part of the county attorney was most beneficial to the defendant. The descriptive label of information was: “Pointing Pistol at Another.” See: Curtis v. State, 86 Okla. Cr. 332, 193 P. 2d 309.

The allegation that the “gun” was discharged and that the leaden bullets hit' the car in which the prosecuting witness was riding and driving, constituted facts to be proved in support of the charge of pointing a pistol at another. The state would have to prove intentional pointing, Buchanan v. State, 25 Okla. Cr. 198, 219 P. 420, and the act charged happened in the night-time, so proof of the discharge of the pistol by the defendant and the bullets striking the car in which complainant was riding would certainly support the charge. The county attorney acts under a discretion committed to him for public good, and one of his most important functions is to select, out of what the law permits, the charges which he will bring against offenders. They have no power to elect, and above all they cannot object if he overlooks their heavier offendings and prosecutes them simply for the lighter. This has long been the majority rule.

For an excellent discussion of the basic principle involved, see: Bishop New Commentaries on the Criminal Law (8th Ed.) par 812(3) and 812-a. And while we do not discover where a case exactly like the present one as to facts has been before this court, there is a long line of cases where the same principle is involved and that are analogous.

See Wallin v. State, 84 Okla. Cr. 194, 182 P. 2d 788, holding:

“An information, charging defendant with contributing to a minor’s delinquency by knowingly and willfully encouraging named female, nine years old, to become a delinquent child, in that defendant willfully, lewdly and lasciviously exposed his privates, with willful and unlawful intent to excite vicious or lewd thoughts in such minor’s mind, ws sufficient to charge statutory misdemeanor of encouraging a minor to become a delinquent child, though defendant could have been charged with felony of indecent exposure on same facts. 21 O.S. 1941 § 856, 857, subds. 1-3; 1021,, subd. 1.”

And see Johnson v. State, 17 Okla. Cr. 558, 190 P. 897; Holz v. State, 62 Okla. Cr. 1, 69 P. 2d 405; and People v. Casias, 73 Colo. 420, 216 P. 513.

In the State of New York, the Court of Special Sessions of New York City has jurisdiction of misdemeanor cases, and the defendant Lefkowitz was prosecuted on a charge of petit larceny, but the facts charged in the information would have supported a charge of grand larceny, a felony charge of which the court of Special Sessions had no jurisdiction. The Supreme Court of New York, Appellate Division, People on Complaint of Kane, v. Lefkowitz, 232 App. Div. 18, 248 N.Y.S. 615, upheld the conviction of the petit larceny charge and of the jurisdiction of the Court of Special Sessions. By permission the ease was taken to the Court of Appeals of New York, and the action of the two lower courts was by per curiam opinion confirmed. See: 257 N.Y. 560, 178 N.E. 794.

On the record before us, wé have discovered no error which would warrant a reversal of the judgment of conviction, and it appears that the defendant was accorded a fair and impartial trial. The judgment of the county court of Choctaw county, Okla., is accordingly, affirmed.

JONES, P. J., and BRETT, J., concur.

On Rehearing.

Original opinion adhered to. See 89 Okla. Cr. 421, 209 P. 2d 512.

Appeal from District Court, Oklahoma County; A. P. Van Meter, Judge.

Welch, Bounds & Kile, Hugo, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Vester Songer, Co. Atty., Hugo, for the State.

POWELL, J.

An opinion was rendered in this case on August 31, 1949, affirming the judgment of the county court of Choctaw county, Okla. In that opinion it was stated that the court did not have benefit of a brief on behalf of the defendant. However, we gave due consideration to the issues raised by the petition in error, and decided the case on its merits. Petition for rehearing was subsequently filed and denied. On November 9, 1949, an order was entered granting defendant permission to file a second petition for rehearing, inasmuch as his attorney was serving in the State Legislature at the time the brief was due herein, and counsel filed an able brief on behalf of the defendant, in support of his petition in error. We have carefully studied the authorities cited in this brief. Nevertheless, we feel that the conclusions reached in our opinion as stated therein are correct.

It is therefore ordered that the judgment and sentence of the county court of Choctaw county be and the same is hereby affirmed, and the clerk is directed to issue mandate immediately.

JONES, P. J., and BRETT, J., concur.


text:
    Ex parte CLEM H. STEPHENSON.
    No. A-11249.
    Aug. 31, 1949.
    (209 P. 2d 515.)

      Clem H. Stephenson, of Wewoka, and Harry Stephenson, of Okemah, for petitioner.

      Phillips & Frerichs and Ross & Ross, all of Okemali, for respondent.
   BRETT, J.

This is an original action in habeas corpus brought by Robert L. Stephenson, alleging that he is unlawfully restrained and confined in the county jail, by the sheriff of Okfuskee county, Okla. To his petition a response was made by J.- W. Kennedy, sheriff of Ok-fuskee 'county, Okla. From, said response it appears that the petitioner’s restraint arose under the following facts: On the 5th day of June, 1943, a decree of divorce was granted Helen Stephenson from the petitioner herein. In said decree the care and custody of the minor child of said parties, Patricia Stephenson, was exclusively confided in the mother and the petitioner herein was “enjoined from interfering with the plaintiff or the child in her custody, except” the right of visitation ' “at its mother’s home at. reasonable times”, provided he caused no trouble to the plaintiff. From this decree the petitioner herein appealed to the Supreme Court of the State of Oklahoma, which said court, on May 15, 1946, affirmed the decree of the trial court. It appears that the petitioner obtained physical custody of the child, following the decree by the district court of Okfuskee county, Okla., on June 5, 1943; before the said court could reduce its decree to writing, that the petitioner removed said child from the state and has concealed said child from the court ever since the rendition of said decree on June 5, 1943.

It further appears that subsequent thereto the parties jabove submitted themselves to the jurisdiction of the district court of Harris county, Tex., in a similar action wherein the petitioner prevailed, and Helen Stephenson appealed, Avhich appeal resulted adversely to her. In the decree therein rendered the custody of said Patricia Stephenson was confided in the petitioner herein. The Okla-boma court’s jurisdiction is not in question and we are not concerned with the Texas proceedings.

On May 21, 1949, it is undisputed that the petitioner brought Patricia Stephenson into Okfuskee county, Okla., and that at said time she was visiting in the home of petitioner’s parents in Okemah. Upon being advised by verified petition for habeas corpus of the fact that said child was within its jurisdiction, the district court of Ok-fuskee county issued the following order:

“County of Okfuskee, State of Oklahoma, I No. 11,966
“To The Sheriff Of Okfuskee County, Oklahoma:
“A verified petition for habeas corpus having been filed in this court on the 21 day of May, 1949, in the District Court in and for the county of Okfuskee, Oklahoma, by Ross & Ross, attorneys for Helen Rogers, nee Stephenson, charging that Robert L. Stephenson is unlawfully and illegally holding Patricia Stephenson, a minor, in violation of an order of this court in case No. 10720, you are therefore commanded forthwith to arrest the above named Robert L. Stephenson and to take immediate custody of Patricia Stephenson, a minor, and bring them before this Court forthwith to be dealt with according to law.
“Given under my hand, with the seal of said court affixed, this 21 day of May, 1949.
“ (Signed) Jess I. Miracle “District Judge.”

The sheriff executed said order on said date at about 10 p.m., by .arresting and taking into custody Robert L. Stephenson. He could not execute the order in relation to the child, she having been removed to the State of Kansas, near Winfield, the present home of the petitioner, before said order was served.

On Monday morning, May 23, 1949, the matter came on for hearing before Honorable Jess I. Miracle, judge of the district court, on said verified petition and order. The petitioner filed a special appearance and plea to the jurisdiction of the court, and motion to quash, both of which the trial court overruled. Then a request for the disqualification of Judge Miracle was made and overruled. The petitioner then requested sufficient time to procure certified copies of the decree from the district court of Harris county, Tex., before proceeding to trial on the matters, which request was likewise refused. Whereupon the respondent asserts, and which is not denied by petitioner, that the trial court thrice asked the following question “Will you immediately bring the baby into the court”, to which the petitioner twice gave no answer and the third time replied “I could not do so myself”, whereupon the record shows the trial court without a hearing adjudged the petitioner in direct contempt of court, and ordered him to jail in the custody of the sheriff, until the petitioner produced said child. Thereupon the trial court entered its order of confinement in conformity with the provisions of Title 21 O. S. A. 1941 § 569, detailing the substance of the offense.

Respondent attacks the jurisdiction of this court, contending that the contempt herein involved arises out of a civil action, and that therefore, the Supreme Court would have jurisdiction of the habeas corpus proceeding brought by the petitioner to obtain his release from jail for contempt. He cites in support thereof Ex parte Herrin, 67 Okla. Cr. 104, 93 P. 2d 21, 22:

“Generally, 'in matters arising out of the criminal jurisdiction the Criminal Court of Appeals exercises jurisdiction in habeas corpus cases. In matters arising out of the civil jurisdiction the Supreme Court exercises this right.”

That case did not involve a contempt proceeding, is not in point, and an attempt to apply the broad general rule therein to contempt cases can only lead to confusion. It cannot be denied that in all criminal cases, and in none other, this court has exclusive jurisdiction. The question as to whether we have jurisdiction herein is, therefore, one as to whether the contempt with which the defendant is charged is criminal or civil. The statutory definition of contempts as applicable to the facts herein is as follows:

“* * * Direct contempts shall consist of disorderly or insolent behavior committed during the session of the court and in its immediate view, and presence, and of the unlawful and wilful refusal of any person to be sworn as a witness, and the refusal to answer any legal or proper questions; and any breach of the peace, noise or disturbance, so near to it as to interrupt its proceedings, * * * and may be summarily punished * * Indirect contempts of court shall consist of wilful disobedience of any process or order lawfully issued or made by court; resistance wilfully offered by any person to the execution of a lawful order or process of a court.” Title 21 O.S.A. 1941 § 565. And § 1390, Title 12 O.S.A. 1941, as follows, to-wit:
“An injunction granted by a judge, may be enforced as the act of the court. Disobedience of any injunction may be punished as a contempt, by the court or any judge who might have granted it in vacation. An attachment may be issued by the court or judge, upon being satisfied, by affidavit, of the breach of the injunction, against the party guilty of the same, who may be required, to pay a fine riot exceeding two hundred dollars, for the use of the county, to make immediate restitution to the party injured, and give further security to obey the injunction; or, in default thereof, he may be committed to close custody, until he shall fully comply, with such requirements, or be otherwise legally discharged.”

This section of the statute respondent did not elect to invoke. Instead the contempt action was brought under the provisions of Title 21 O.S.A. 1941 § 565.

The foregoing statute, while definitive of direct and indirect contempts, did not lay down the distinction as between civil and criminal contempts, but the line between acts constituting criminal and those constituting civil contempts is very distinct. The confusion in attempts to classify civil and criminal contempts is due to the fact that there are contempts in-which both elements appear. 17 C.J.S., Contempt, § 5, p. 7. The distinction cannot be made solely because the contempt action may be incident to a civil, criminal or special proceeding; for civil or criminal contempts may arise out of either. The real test for classification is that civil contempts consist in failing to do something ordered to be done by the court in a civil action for the benefit of the opposing party therein, and is therefore an offense against the party in whose behalf the violated order was made. A civil contempt is an infringement on the right of a private person or persons. If, however, the contempt consists in doing a forbidden act, injurious to the opposite party, the contempt may be considered criminal. 17 C.J.S., Contempt; § 7 p. 8. Flathers v. State, 7 Okla. Cr. 668, 125 P. 902. A criminal contempt is an offense against the public or society by conduct that is directed against the dignity and authority of the court or judge acting judiciously, obstnictive of the administration of justice, and disrespectful to the majesty of the state. 17 C. J. S., Contempt, § 5, p. 7. Ex parte Gudenoge, 2 Okla. Cr. 110, 100 P. 39; Flathers v. State, supra; Blanton v. State, 31 Okla. Cr. 419, 239 P. 698, where in addition to making the foregoing classification this court pointed out that a civil contempt may be either direct or indirect and a criminal contempt may be either direct or indirect. Moreover, therein it was said:

“But the violation of an order not made for the benefit of any party to the litigation on a matter pending in the court is not a civil contempt, but is an act obstructive to the administration of justice and is a criminal contempt.”

See, also, Brown v. State, 89 Okla. Cr. 443, 209 P. 2d 715. Direct contempt is a crime, Smythe v. Smythe, 28 Okla. Cr. 266, 114 P. 257, and the punishment therein constitutes a sentence in a criminal case. Deskins v. State, 62 Okla. Cr. 314, 71 P. 2d 502; Cannon, v. State, 58 Okla. Cr. 451, 55 P. 2d 135.

In civil contempts the punishment by imprisonment is for the purpose of coercing the performance of an act compensatory or remedial for the benefit of the opposite party. In criminal contempts the primary purpose is punishment in vindication of public authority, the dignity of the court and the majesty of the state.

In light of the foregoing principles, it is clear that the conduct of the petitioner from the date the decree was entered has been that of open defiance and utter disrespect of the majesty and dignity of the Oklahoma courts, in violating the order vesting custody of Patricia Stephenson in her mother. The sheriff as respondent is confused in attacking the jurisdiction of this, court herein. He is confused as to the purpose for which this contempt proceeding for violation of the court’s order is brought. He says in regard to the writ of habeas corpus, “this old remedy is used not to punish nor hurt but to be of benefit to the parties concerned. Who is the party most concerned? It is this child, Patricia Stephenson, * * hence, his error in assuming that this matter is one that involves a civil contempt and his assertion that this court has no jurisdiction. Patricia Stephenson is not a party to this.action, except incidentally. Only the father and mother are parties to the divorce action. The decree for the custody of Patricia Stephenson was not made for either of them, but was made for the welfare and the best interests of the child, Matthews v. Matthews, 198 Okla. 320, 178 P. 2d 95; Lutke v. Lutke, 198 Okla. 131, 176 P. 2d 496; irrespective of the personal desires of the parties to the divorce action. See, also, 27 C.J.S. Divorce, § 309, p. 1171, for numerous cases. It is therefore clear that the order made and entered conferring custody of the child upon one of the parties to the divorce action is not an order made for the benefit of said party in whom custody is confided. The question of custody is one of public interest. It therefore follows that the failure to obey an order conferring custody of the child to the other party in a divorce action is not an offense against a private person, but an offense against the express will of the state, and criminal in its nature, either direct or indirect, depending upon whether the contempt is committed in or out of the presence of the court.

Respondent contends that the order for custody is analogous to an order to pay alimony, costs, attorneys fees, and cites in support thereof the following cases: Wells v. Wells, 46 Okla. 88, 148 P. 723; Wells v. Wells, 39 Okla. 765, 136 P. 738; Wells v. State, 9 Okla Cr. 326, 131 P. 725; Ex parte Townsend, 177 Okla. 286, 59 P. 2d 279; Ex parte Plaistridge, 68 Okla. 256, 173 P. 646; Ex parte Bighorse, 178 Okla. 218, 62 P. 2d 487. In this he is in error. The analogy does not exist, and the cases cited are not in point. It is universally held that the failure to pay alimony, attorneys fees, and to convey property to a party to a divorce action constitutes a failure to obey an order of the court ordering the doing of something for the benefit of a party to the action. Such is not the case at bar. Here, we are confronted with an order made in the interest of the administration of justice, the failure to perform which, is an offense against the public will as expressed through its courts, is obstructive of the administration of justice, against the dignity and majesty of the state and constitutes criminal contempt. We are therefore of the opinion that the respondent’s contention that this court is without jurisdiction in this proceeding is without merit. The conclusion that this is a criminal contempt is confirmed by one of the cases cited by the respondent, Smythe v. Smythe, Oklahoma Supreme Court, supra, in which case that court held:

“Appearing in court in response to a writ of habeas corpus, and refusing to produce the body of a child pursuant to the' requirements of said writ, without a reasonable excuse, or willfully making an evasive or insufficient answer thereto, is a contempt committed in the presence of the court.
“(a) A proceeding to punish for'such contempt is a criminal action.”

Petitioner next contends that under the provisions of art. 7, § 19, Constitution, the writ of habeas corpus is void., The pertinent provisions thereof are as follows:

“The style of all writs and processes shall be ‘The State of Oklahoma.’ ”

He cites in support thereof the following cases: Bishop v. State, 47 Okla. Cr. 249, 288 P. 363; Murray v. State, 47 Okla. Cr. 219, 287 P. 781; Woods v. State, 46 Okla. Cr. 288, 287 P. 769; Folsom v. Mid-Continent Life Insurance Co., 94 Okla. 181, 221 P. 486; Martin v. Hos-tetter, 59 Okla. 246, 158 P. 1174. To which may be added Eslick v. State, 70 Okla. Cr. 196, 105 P. 2d 554; Stewart v. State, 71 Okla. Cr. 292, 111 P. 2d 200. These cases hold that this provision is mandatory. With these cases we are in complete agreement, but it is well to observe that they all apply to processes issued generally by the clerk of the court. The object of the Constitution in requiring process to run in the name of “The State of Oklahoma” is to exclude any other or foreign power or private person from the exercise of such authority. The foregoing provision is directed at ordinary writs issued by the clerk as an arm of the court. It gives authenticity to the writ issued by him. But when it clearly appears from the record, as it does in the case at bar, that the writ of arrest in aid of habeas corpus was actually issued, “Okfuskee County, State of Oklahoma,” by the district judge over his signature, within his jurisdiction and with authority of law, no question of authenticity arises. This is all the Constitution requires. Arie v. State, 1 Okla. Cr. 666, 100 P. 23, 33. To hold otherwise would defeat the intent and purpose of the writ of habeas corpus which is an extraordinary writ to effect a speedy release of one held in unlawful restraint. In keeping with this principle, under which the writ of arrest herein involved was issued, are the provisions of Title 12 O.S.A. 1941 §§ 1348, 1349, as follows :

“§ 1348. Whenever it shall appear by affidavit that anyone is illegally held in custody or restraint, and that there is good reason to .believe that such person will be carried out of the jurisdiction of the court or judge before whom the application is made, or will suffer some irreparable injury before compliance with the writ can be enforced, such court or judge may cause a warrant to be issued, reciting the facts, and directed to the sheriff or any constable of tbe county, commanding Mm to take the person thus' held in custody or restraint, and forthwith bring him before the court or judge, to be dealt with according to law.
“§ 1349. The court or judge may also, if the same be deemed necessary, insert in the warrant a command for the apprehension of the person charged with causing the illegal restraint.”

To obviate a plea in any habeas corpus proceeding, such as we are herewith confronted, it is provided in Title 12 O.S.A. 1941 § 1353, as follows:

“* * * And no writ or other process, shall be disregarded for any defect therein, if enough is shown to notify the officer or person of the purport of the process. Amendments may be allowed, and temporary commitments, when necessary.”

The writ to which tMs section refers is the writ of habeas corpus, since the section appears in the chapter providing for the writ of habeas corpus. The writ in the case at bar meets the requirements of the foregoing section. It is amply sufficient to notify the petitioner of the purport of the process, as well as of the fact that it emanated from the district court of Okfuskee county, Okla., and the judge thereof. In keeping with the provisions of the last quoted section, the writ should accordingly be amended by showing the same to run in the name of “The State of Oklahoma”. To permit the contention of the petitioner in this regard to prevail would in many cases amount to not only a curtailment but a denial of the writ of habeas corpus by delay, incident to subtle and metaphysical judicial interpretation and be violative of the spirit, if not the letter, of the provisions of art. 2, § 10 of the Constitution as follows :

“The privilege of the writ of habeas corpus shall never be suspended by the authorities of this State.”

We so bold, for we do not think it was within the-intention of the framers of our Constitution, or the Legislature, to curtail the privileges of the writ of habeas corpus, which is the greatest of all writs. It was invoked by Englishmen before Magna Charta, recognized in the common law, and incorporated in our Constitutions, both state and federal. It is so sacred that not even, the procedural requirements of the Constitution should be permitted to impair its effectiveness, hence the provisions of Title 12 O.S.A. 1941 § 1353, in relation to amendments to the writ. We are convinced it was not the intention of the Constitution makers to create a situation by procedural prescription so as to impair the effectiveness of the writ of habeas corpus, and we will not so construe art. 7, § 19, in derogation of the right of one entitled to invoke the writ of habeas corpus. To hold otherwise would make of what was intendéd as a shield against the unlawful' issuance of process a shackle to relief against unlawful restraint and thus perpetuate unlawful restraint in violation of speedy release. The law should not be so construed as to make of a constitutional shield against wrongdoers a shackle or of a constitutional shackle against wrongdoing a shield. The petitioner’s contention that the writ of habeas corpus and all proceedings are void because said writ did not run in the name of the State of Oklahoma as applied to the case at bar is without merit.

The final proposition urged by the petitioner is the trial court failed to grant him a hearing as required by art. 2, § 25 of the Bill of Rights to the Constitution, the pertinent part of which reads as follows:

“In no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given.”

This contention is well grounded. It is supported by the plain provisions of the Constitution and many cases construing the same. In Ex parte Sullivan, 10 Okla. Cr. 465, 138 P 815, Ann. Cas. 1916A, 719, in syllabus 1 this court said:

“Under that clause of section 25 of the Bill of Rights, providing, ‘In no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given,’ an opportunity to be heard before a penalty or punishment is imposed for .contempt is an indispensable essential to the administration of due process of law as contemplated by the constitutional inhibition that ‘No person shall be deprived of life, liberty, or property, without due process of law.’ Section 7, Bill of Rights.”

The foregoing rule is followed in numerous cases in which opinions were rendered subsequent to its announcement in Ex parte Sullivan. Here the petitioner was not given a hearing as provided by law, he was charged, tried and condemned without an opportunity to be heard. There are many distinguishing features between proceedings for direct and indirect contempt, such as no formal charge is necessary in a direct contempt. Harman v. State, 59 Okla. Cr. 267, 60 P. 2d 404. In direct contempt proceedings no process is necéssary to jurisdiction. Lynn v. State, 38 Okla. Cr. 313, 260 P. 1069. Moreover, in a direct contempt the accused is not entitled to a jury trial. Pryor v. State, 48 Okla. Cr. 91, 290 P. 345; Moss v. Arnold, 63 Okla. Cr. 343, 75 P .2d 491; Deskins v. State, supra; Dancy v. Owens, 126 Okla. 37, 258 P. 879; State ex rel. Attorney General v. Owens, 125 Okla. 66, 256 P. 704, 52 A.L.R. 1270. While in all indirect con-tempts the law requires a formal charge in writing as notice, that the accused have reasonable time for defense, and upon demand a trial by jury. Title 21 O.S.A. 1941 § 567; Wofford v. State, 33 Okla. Cr. 288, 243 P. 988; Blanton v. State, supra; and Emery v. State, 29 Okla. Cr. 29, 232 P. 128; Ex parte Hibler, 139 Okla. 157, 281 P. 144; Dancy v. Owens, supra; State ex rel. Attorney General v. Owens, supra. But the right to a hearing is common to both direct and indirect contempts, and it is error to deny such hearing before condemnation. Article 2, § 25, Constitution, Bill of Rights, referred to supra. Deskins v. State, supra; Moss v. Arnold, supra; Ex parte Owens, 37 Okla. Cr. 118, 258 P. 758, 810; Cannon v. State, supra; Pryor v. State, supra; Moore v. State, 41 Okla. Cr. 310, 272 P. 1032; Ex parte Reily, 60 Okla. Cr. 217, 62 P. 2d 1035. Here, the petitioner was condemned without a hearing, and was denied his constitutional rights in violation of due process. The other questions herewith presented, and not discussed herein, are without substantial merit. The writ is accordingly granted, with directions that the petitioner be accorded a hearing on the direct contempt charge as by law provided.

JONES, P. J., and POWELL, J., concur.


text:
    ROY BROWN v. STATE.
    No. A-11001.
    Sept. 7, 1949.
    (209 P. 2d 715.)

      Geo. T. Arnett, of Idabel, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

This is an appeal by Roy Brown, defendant below, from the trial, conviction, judgment and sentence to one year in the State Penitentiary for the crime of contempt of court, arising by reason of the violation of the court’s order of injunction.

The defendant questions some phases of the proceeding leading up to the entry of the order of injunction which he is alleged in the sworn application or complaint to have violated. With these questions we have nothing here to do, for mere errors in the proceeding in which the order of injunction is granted, or irregularities in the form of said order, do not constitute grounds or justification for disobeying the order of injunction or relieve one from punishment for contempt where the proceedings are not void. State v. Pierce, 51 Kan. 241, 32 P. 924. Where the order of injunction is not void the same is not subject to collateral attack. See 17 C.J.S., Contempt, § 14, p. 21, on erroneous judgment or order as a predicate for contempt proceedings as follow, to. wit:

“* * * an order, judgment, or decree of a court having jurisdiction of the parties and the subject matter cannot be collaterally attacked in the contempt proceedings, but must be modified or vacated if erroneous, by a direct proceeding, disobedience of an order made by a court within its jurisdiction and power is a contempt, although the order may be clearly erroneous.” Or “was improvidently granted, or irregularly obtained.” Citing numerous authorities in support thereof.

In State v. Wilson, 162 Kan. 507, 178 P. 2d 277, 282, the Kansas Supreme Court said:

“Since the trial court had jurisdiction of the defendant and of the subject matter,, any .irregularities in the original injunction are not subject to collateral attack. an injunction order which is not void but is merely irregular or erroneous must be obeyed unless it is set aside by direct proceedings as distinguished from collateral.”

Here, the order was based upon jurisdiction of the person, of the subject matter, and authority under the law to enter the order, and we will not go behind the same. But had it been erroneously entered, with the first two elements of jurisdiction present, the fact of erroneous entry alone would not constitute a justification for tbe violation of tbe order of injunction, Billard v. Erhart, 35 Kan. 616, 12 P. 42, for only dissolution of tbe order would afford protection. See 43 C.J.S., Injunctions, § 259, p. 1007, Notes 65 and 66, on validity and regularity of injunctions as follows:

“Where tbe court bad jurisdiction, tbe fact that tbe injunction or restraining order, or the order for tbe same is merely erroneous, or was improvidently granted or irregularly obtained, is no excuse for violating it; and this rule applies with equal force to a prosecution for contempt instituted for tbe purpose of punishing a person for disobeying an order of the court on tbe ground that it's authority or dignity is in question, and one which is instituted to enforce the authority of tbe court in the administration of justice between litigants.”

Citing numerous authorities in support thereof. Consequently, we are only concerned in tbe case at bar with tbe proceedings for contempt and not the proceedings leading up to the entry of tbe order of injunction.

The record reveals that the court, on August 15,1947, after hearing evidence, entered its permanent order of injunction against the defendant, Roy Brown’s, continued operation of the dance being conducted at his home, in McCurtain county, Obla. The evidence in support thereof discloses that his home was a place of public resort attended by women of loose morals and bootleggers, where liquor was freely consumed, and acts of immorality and indecency were indulged in in close proximity thereto, and children, both boys and girls, were permitted to loiter and dance. The record further shows that, on August 16 and 18, in violation of the court’s injunction, the defendant continued the operation of the dance at said place. Upon these violations the application for citation was predicated.

Contempts are defined in Title 21 O.S. 1941 § 565, as direct and indirect:

“* * * Direct contempts shall consist of disorderly or insolent behavior committed during the session of the court and in its immediate view, and presence, and of the unlawful and wilful refusal of any person to be sworn as a witness, and of the refusal to answ;er any legal or proper question; and any breach of the peace, noise or disturbance, so near to it as to interrupt its proceedings, * * * and may be summarily punished * * *. Indirect contempts of court shall consist of wilful disobedience of any process or order lawfully issued or made by court; resistance wilfully offered by any person to the execution of a lawful order or process of a court.”

Contempt cases are further classified in law as civil contempts and criminal contempts. The distinction being:

“The former consists in disobeying some judicial order made in the interest of another party to a proceeding. . The latter consists of acts disrespectful to the court, or obstructive to the administration of justice, or calculated to bring the court into disrepute. * * *
“A civil contempt may be either direct or indirect, and a criminal contempt may be either direct or indirect.” Blanton v. State, 31 Okla. Cr. 419, 239 P. 698, 700.

The contempt in the case at bar is both indirect, and criminal. It was in disrespect of the court’s order of injunction committed beyond the presence of the court, and in obstruction to the administration of justice. Criminal contempt is a crime, and when the contemnor is found guilty, punishment therefor is a sentence in a criminal case, and the adjudication therefor in law is a conviction, and commitment therefor is in execution of a sentence for a criminal offense. Cannon v. State, 58 Okla. Cr. 451, 55 P. 2d 135. This being indirect contempt, der fendant was entitled to be charged, notified and tried by a jury as provided-in Title 21 O.S.A. 1941 § 567, as follows, to wit:

“In all cases of indirect contempt the party charged with contempt shall be notified in writing of the accusation and have a reasonable time for defense; and the party so charged shall, upon demand, have a trial by jury.”

We find that the last quoted provisions of the statutes were substantially complied with herein.

The defendant seeks to evade the consequences of his contempt by the plea, that the dance was conducted for and on a charitable basis to aid some people in distress. In this regard the law will not permit such an excuse to prevail. It will not permit to be done by indirection, that which it says cannot be done directly. His plea is therefore without merit.

The application and the evidence are sufficient to make and support the charge of contempt. In this regard the case is clear cut and conclusive. This being true the only remaining inquiry must be directed to the judgment and sentence and order of confinement.

The power to punish for contempt is inherent in the courts. In Cress v. State, 14 Okla. Cr. 521, 173 P. 854, it'is held that the power to punish for contempt is inherent in the courts, but such power is to be exercised only when absolutely essential in the proper protection of the dignity of the court and enable it to administer justice and transact its business with decorum. But such proceeding is controlled by mandatory constitutional and statutory provisions and not by common law rules. Cannon v. State, supra. The Constitution, Art. 2, § 25, empowers the Legislature to pass laws in relation to contempt but provides:

“ * * * that any person accused of violating or disobeying, when not in the presence or hearing of the court, or judge sitting as such, any order of injunction, or restraint, made or entered by any court or judge of the State shall, before penalty or punishment is imposed, be entitled to a trial by jury as to the guilt or innocence of the accused. In no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given.”

Pursuant to this authority the Legislature acted generally in Title 21 O.S.A. 1941 §§ 565, 566, 567, 568, defining contempts as hereinbefore set out in § 565, and in the other provisions setting forth the procedure to be pursued in such cases and limiting the power of the courts in relation thereto. Further, Title 12 O.S.A. 1941 § 1390, makes provisions for violations and covering an order of injunction. The latter section will hereinafter be set forth. In Deskins v. State, 62 Okla. Cr. 314, 71 P. 2d 502, 507, the court said:

“The constitutional provision and the statute merely affirm a pre-existing power. Without the power, courts could not fulfill their responsible duties for the good of the public.
“No one doubts either the right or duty of a court to punish as contempts disorderly and contumelious behavior, breaches of the peace, or any willful disturbance in its presence. The right rests on the necessity that was found to exist to enable courts to administer the law without interruption by improper interference, and to maintain their own dignity. So indispensable is this power that its just exercise, so far as it may be necessary for the due protection of the courts, has never been questioned.”

All of the prerequisities to a valid conviction herein have been pursued except § 568 and § 1390. Section 568, 21 O.S.A. 1941, is as follows:

“Whenever a person shall be imprisoned for contempt the substance of the offense shall be set forth in the order- for his confinement, and' made a matter of record in the court.”

This provision has been held to be mandatory. Deskins v. State, supra; Emery v. State, 29 Okla. Cr. 29, 232 P. 128; Ex parte Reily, 60 Okla. Cr. 217, 62 P. 2d 1035; Cress v. State, supra; Ex parte Dawes, 31 Okla. Cr. 397, 239 P. 689. The record herein does not disclose any attempt to comply with the provisions of § 568 of the.statute, either in what is denominated a general entry of proceedings or the judgment and sentence on conviction, which contains the order on confinement to the penitentiary. The only reference to the fact is in the following language “as charged in said application for citation”. This has been held to be entirely insufficient. In Ex parte Dawes, supra, a direct contempt case, this court said:

“ ‘Whenever a person shall be imprisoned for contempt the substance of the offense shall be set forth in the order for his confinement, and made a matter of record in the court,’ in a case of direct contempt, the order of commitment must set forth facts constituting the contempt, and is void unless it shows on its face acts sufficient to constitute a legal contempt; mere conclusions being insufficient.”

In Ex parte Hibler, 139 Okla. 157, 281 P. 144, an indirect contempt case, the Supreme Court said:

“Under the provisions of section 1700, C.O.S. 1921 [21 O.S. 1941 § 568], the substance of the offense is required to be set forth in the order for confinement and made a matter of record in the court. This section requires the facts constituting the contempt to be set forth and mere, conclusions are insufficent.”

But, where the facts are set forth in the judgment and sentence and order of confinement and made a matter of record in the court, such constitutes compliance with the statute. Deskins v. State, supra. As we haye hereinbefore indicated no such attempt at compliance was made herein; consequently, the judgment and sentence and order of commitment herein is void as not being in compliance with the mandatory provisions of the statute.

The contempt herein involved is in violation of the court’s order of injunction. Such violations are expressly covered by Title 12 O.S.A. 1941 § 1390, as follows:

“An injunction granted by a judge, may be enforced as the act of the court. Disobedience of any injunction may be punished as a contempt, by the court or any judge who might have granted it in vacation. An attachment may be issued by the court or judge, upon being satisfied, by affidavit, of the breach of the injunction, against the party guilty of the same, who may be required, to pay a fine not exceeding two hundred dollars, for the use of the county, to make immediate restitution to the party injured, and give further security to obey the injunction; or, in default thereof, he may be committed to close custody, until he shall fully comply with such requirements, or be otherwise legally discharged.”

Under this provision contemnor can be imprisoned only for failure to pay a fine of not to exceed $200, make immediate restitution to tibe party injured or his failure, to give further security to obey the injunction, and upon' default so to do he may be committed to close custody until he shall fully comply with such requirements, or otherwise be discharged. Ex parte Hibler, supra. The trial court in no particular sought to invoke the provisions of this section, which is expressly applicable to the situation herein involved. Since the foregoing statute is controlling and its provisions were not followed and the court acted in excess of the provisions therein contained, its action in so doing was excessive and void'. We might conclude this discussion with the conclusions already made. However, it is well to observe that we have been unable to find any Oklahoma statute which provides that punishment for contempt shall be by imprisonment in the penitentiary. Certainly 12 O.S.A. 1941 § 1390 does not so provide. Neither does Title 21 O.S.A. 1941 § 566, so provide, which reads as follows:

“Punishment for contempt shall be by fine or imprisonment, or both, at the discretion of the court.”

In the absence of express provisions making the offense of contempt a felony, one found guilty thereof cannot be punished by confinement in the penitentiary. The sentence of the defendant herein to the penitentiary was in excess of the court’s power to pronounce. The verified application for citation being sufficient to inform the defendant of the charge of contempt, and the evidence of the violation of the order of injunction being ample to sustain the conviction, it is therefore apparent the court erred only in the pronouncement of the judgment and sentence. For all of the foregoing reasons the judgment and sentence and order of commitment is accordingly vacated, and the case remanded for further proceedings not inconsistent with this opinion.

JONES, P. J., and POWELL, J., concur.


author: PER CURIAM.

text:
    KARL WILSON BOHOT v. STATE.
    No. A-10943.
    Oct. 5, 1949.
    (210 P. 2d 329.)
    T. Jack Tellegen and John T. Carney, both of Oklahoma City, for Bohot.
    Mac Q. Williamson, Atty. G-en., for the state.
   PER CURIAM.

After further consideration of all of the factors in this case as urged in the petition for rehearing, it is our opinion that justice demands a modification of the judgment and sentence to a fine of $250 and the costs of the prosecution.

It is therefore ordered that the judgment and sentence of the court of common pleas of Oklahoma county be modified to a fine of $250 and costs.

Mandate to issue immediately.