author: Williams, J.

text:
    Arie v. State.
    No. 11.
    Opinion Filed February 2, 1909.
    (100 Pac. 23.)
    1. INTOXICATING LIQUORS — Constitutional Law — Adoption of ¿onstítutional Provisions — Submission to Vote — Presumption of Regularity. The prohibition article, which was separately submitted with the Constitution for ratification or rejection, the party assailing the same failing to point out in what particular it was not properly -submitted in accordance with Enabling Act June 16, 1906, c. 3335, '34 Stat. 267, it having been declared adopted and accepted and recognized by the political departments of both the federal and state govei'nments, will not be declared by the courts invalid, on the ground that it was not properly submitted or adopted.
    2. INTOXICATING LIQUORS — Constitutional Law — Construction—Similar Language in Different Provisions — Obligation of “Contracts”— License — Schedule of Constitution — Repeal of Law Authorizing License —Effect. It was the intention of the framers of the Constitution that the prohibition provision, required to be incorporated therein by virtue of paragraph 2, -sec. 3, Enabling Act June 16, 1906, c. 3335, 34 Stat. 269, should be enforceable in the courts of the state immediately upon the admission of the state into the Union.
    2a. Such provision was incorporated in section 7, art. 1 (Bunn's Ed. sec. -9) by the framers thereof with a like intent.
    2b. The prohibition article (Bunn’s Ed. sec. 499; Snyder’s Ed. p. 394; Gen. St. Ann. Okla. 190S, p. 162) was submitted as a separate proposition, with the intention that it should become effective over the entire state in like manner, if approved by the people and the Constitution was also ratified.
    2c. A license issued under a general statute to a dealer in liquors is in no sense a “contract” between the state and the licensee, and is not protected by the contract clause of the federal Constitution, being a mere permit which may be modified, annulled, or revoked at the pleasure of the legislative power.
    2d. A schedule to a Constitution generally contains temporary provisions for the preparatory machinery necessary to put the principles of the government under the Constitution in motion without disorder or collision, not as a rule to control the principles of the organic law, or to limit the same, but to carry the whole into effect without break or interval.
    2e. The laws licensing the liquor traffic (article 1, c. 49, Wilson’s Rev. & Ann. St. 1903), at the time of the admission of the state into the Union, were repugnant to the provisions of the prohibition article thereof, and were not extended "to, and did, not remain in force in, said state.
    2f. A license to carry on the liquor traffic is revoked or annulled by the repeal of the law authorizing the granting of such license.
    2g. A liquor license, the period for which it was issued not having expired when the state of Oklahoma was admitted into the Union, was revoked and discontinued on the admission of said state; the prohibition article thereof becoming then and there effective.
    (Syllabus by the Court.)

      Certified Questions from Criminal Court of Appeals.

    Nick Arie was convicted of an unlawful sale of liquor, and he brought error to the Criminal Court of Appeals, which court certifies to the Supreme Court questions involving the construction of the prohibition articles of the Constitution. Questions answered.
    On the 14th day of December, A. D. 1908, the Criminal Court of Appeals certified to this court two questions, as will hereinafter appear in the body of the opinion, in which the construction of the prohibition article óf the Constitution of- the state is brought into question.

      James F. Steck and Stevens & Meyers, for plaintiff in error.

      W. C. Reeves, Asst. Atty. Gen., for the State.
   Williams, J.

“Was the constitutional provision with reference to the prohibition of the manufacture, sale, giving away, or otherwise furnishing intoxicating liquors and designated in the record as the ‘prohibition amendment to the Constitution’ properly submitted to the people for their ratification or rejection, as required by the provisions of the act of Congress known as the ‘Enabling Act,’ entitled ‘An act to enable the people of Oklahoma and the Indian Territory to form a Constitution and state government, and be admitted into the Union on an equal footing with original states,’ etc., approved June 16, 1906, c. 3335) 34 Stat. 276.”

Section 4 of the enabling act (c. 3335, 34 Stat. 271) provides that:

“In case a Constitution and state government shall be formed in compliance with the provisions of this act, the convention forming the same shall provide by ordinance for submitting said Constitution to the people of said proposed state for its ratification or rejection at an election to be held at a time fixed in said ordinance, at which election, the qualified voters of said proposed state shall vote directly for or against the proposed Constitution, and for or against any provisions separately submitted. The returns of said election shall be made to the Secretary of the territory of Oklahoma, who, with the Chief Justice thereof and the senior judge of the United States Court of Appeals for the Indian Territory, shall canvass the same, and if a majority of the legal votes cast on that question shall be for the Constitution, the Governor of Oklahoma Territory and the judge senior in service 'of the United States Court of Appeals for the Indian Territory shall certify the result to the President of the United States, together with the statement of the votes cast thereon, and upon separate articles or propositions and a copy of said Constitution, articles, propositions and ordinances. And if the Constitution and government of said proposed state are republican in form, and if the provisions of this act have b.een complied with in the formation thereof, it shall be the duty of the President of the United States, within twenty days from the receipt of the certificate of the result of said election and the statement o,f votes cast thereon and a copy of said Constitution, articles, propositions, and ordinances, to issue his proclamation announcing the result of said election, and thereupon, the proposed state of Oklahoma shall be deemed admitted by Congress into the "Union, under and by virtue of this act, on an equal footing with the original states. The original of said Constitution, articles, propositions and ordinances, and the election returns, and a copy of the statement of the votes cast at said election, shall be forwarded and turned over by the Secretary of the territory of Oklahoma to the state authorities of said state.”

There is no contention that the convention had not the authority to submit the prohibition article as a separate proposition.

On the 16th day of November, A. D. 1907, the President of the United States issued his proclamation, which is, in part, as follows:

“Now therefore, I, Theodore Roosevelt, President of the United States of America, do in accordance with the provisions of the said act of Congress of June 16, one thousand nine hundred and six, declare and announce that the result of said election, wherein the Constitution formed as aforesaid, was submitted to the people of the proposed state of Oklahoma for ratification or rejection, was that the said Constitution was ratified, together with the provision for state-wide prohibition, separately submitted at said election, and the state of Oklahoma is to be deemed admitted by Congress into the Union, under and by virtue of said act, on an equal footing with the original states.”

Plaintiff in error has failed to point out in what particular the same was not properly submitted, but see the following authorities: Miller v. Johnson, 92 Ky. 589, 18 S. W. 522, 15 L. R. A. 524; Luther v. Borden, 7 How. 1, 12 L. Ed. 581; Prohibitory Amendment Cases, 24 Kan. 700; Kadderly v. City of Portland,, 44 Or. 118, 74 Pac. 715, 75 Pac. 222. Where a proposition has been submitted separately, at the same time with the Constitution, for ratification or rejection, and declared carried and accepted and recognized as properly adopted by the political departments of both the federal and state governments, and the party assailing the part claimed to be invalid on the ground that it was not submitted as required by the enabling act fails to point out wherein the same was not properly submitted for ratification or rejection, the courts will not in that event, if at all, declare the instrument, or any part of it, invalid for not having been properly submitted or adopted.

“Was the liquor license, held by the employer of the plaintiff in error as a bartender, revoked by the adoption of the Constitution of Oklahoma, or continued in force in the state of Oklahoma for the period for which it was issued, by virtue of the provisions of section i of the schedule’ of the Constitution ?”

For the purpose of ascertaining the intention of the framers of a Constitution we look at the entire instrument. The prohibition article (Bunn’s Ed. § 499; Snyder’s Ed. p. 394; Gen. St. Ann. Okla. 1908, p. 162), pursuant to section 4, supra, of the enabling act was submitted separately at the same time the main body of the Constitution was submitted for approval or rejection; if approved to become a part of the main instrument, in the event of its approval. Said article provides that:

“The manufacture, sale, barter, giving away or otherwise furnishing, except as herein provided, of intoxicating liquors within this state or any part thereof, is prohibited for a period of twenty-one j^ears from the date of the admission of this state into the Union, * * * upon the admission of this state into the Union these provisions shall be immediately enforceable in the courts of the state.”

Section 3, Par. 2, of the enabling act, requires that a prohibition provision, containing practically the foregoing excerpt, should be incorporated in the Constitution of the proposed state, to apply to that portion of said state then known as the “Indian Territory,” the “Osage Indian Reservation,” and such as existed as Indian reservations on the 1st day of January, A. D. 1906, and to continue in force for the period of 21 years from the date of the admission of the state into the Union, and- thereafter until the people of said state should otherwise provide by amending the Constitution and proper state legislation. Said provision was accordingly incorporated in said instrument. Section 7, art. 1 (section 9, Bunn’s Ed.) Snyder’s Ed. p. 16; Gen. St. Ann. Okla. 1908, p. 77. With a view that such provisions might extend to the entire state, if approved by a majority of the electors thereof voting thereon, it was submitted as a separate provision, if approved to become a part of the main instrument, if ratified. Prior to the 1st day of January, A. D. 1906, and even up to the 16th day of November, A, D. 1907, intoxicating liquors were not permitted to be sold in the Indian Territory, the Osage Indian Reservation, or any other Indian reservation with•in the territory now 'embraced in the state of Oklahoma. This requirement of section 3, par. 2, supra, was a precautionary act on the part of Congress to continue in force, until the people of the state should otherwise provide in accordance with law, the prohibition of the sale of intoxicating liquors in the territory embraced in said state where prior' thereto same had been prohibited.

Where the same language is used in different provisions, or different places in a Constitution the presumption is that it was with the same meaning, unless the context'or contemporaneous circumstances should clearly indicate otherwise. It was the purpose in the incorporation of the provisions of section 7, art. 1, supra, that the same should go immediately into effect as to such portion of the state, and that no intoxicating liquors should under any circumstances, except as therein provided, be sold. “The most universal and and effectual way of discovering the true meaning of a law is by considering the reason and spirit of it, or the cause which moved the legislature to enact it.” 1 Bl. Com. 61. Now why is not the same language as used in the prohibition article (Bunn’s Ed. § 4991 Snyder’s Ed. p. 394; Gen. St. Ann. Okla. 1908, p. 162) to be construed to the same effect as the other provision, to wit, that such prohibition article should, immediately upon the admission of the state, be enforceable in the courts of said state? It is contended that the Schedule to the Constitution (section 449, 450. Bunn’s Ed.; Snyder’s Ed. p. 380; Gen. St. Ann. Okla. 1908, p. 153) provides that: “In order that no inconvenience may arise by reason of the change from1 the forms of government now existing in the Indian Territory and the territory of Oklahoma, it is hereby declared as follows: “No existing rights, actions, suits, proceedings, contracts or claims shall be affected by the change in the forms of government, but shall continue as if no change in the forms of government had taken place.. * * *” and for this reason the liquor license remains in force after the admission of the state into the Union, until it expires of its own limitation. To determine the meaning of this provision of the Schedule and the intention of the framers it would not be amiss to consider what the office of a Schedule is. It is a temporary provision for the preparatory machinery necessary to put the principles of the government under the Constitution in motion without disorder or collision, not to control the principles of the organic law or to limit the same where it may be in conflict'therewith, but to carry the whole into effect without break or interval; to shift the machine gradually into another track, and, having done its office, it is stowed away in the lumber room of the government. Commonwealth v. Clark (Pa.) 7 Watts & S. 133. The entire instrument is to be examined in arriving at the meaning of any part thereof, and to be construed as a whole. Effect is to be given, if possible, to each section, clause, and word; and, if any part be doubtful, it must.be interpreted with every fair intendment to harmonize with the main purpose, and not to defeat it. Mabury v. Madison, 1 Cranch, 174, 2 L. Ed. 60; Bryan v. Menefee, 21 Okla. 1, 95 Pac. 471; Trapp v. Wells Fargo Express Co., 22 Okla. — , 97 Pac. 1003.

If the public safety or public morals require the discontinuance of traffic in the sale of intoxicating liquors, the hand of the Legislature cannot be stayed in providing for its discontinuance by any incidental inconvenience which individuals or corporations m'ay suffer. All such rights are held subject to the police power of the state. Beer Co. v. Mass., 97 U. S. 32, 24 L. Ed. 989. The weight of authority is overwhelming that no immunity, by virtue of any constitutional provision, either federal or state, exists so as to prevent the state Legislatures from regulating, and even prohibiting thg traffic in intoxicating drinks. Bartemeyer v. State of Iowa, 85 U. S. 129, 21 L. Ed. 929; Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273 31, L. Ed. 205. A liquor license granted under the exercise of the police power of the state is subject at all times to be annulled or revoked at the pleasure of the Legislature. Powell v. State, 69 Ala. 10; Fell v. State, 42 Md. 71, 20 Am. Rep. 83; Kresser v. Lyman (C. C.) 74 Fed. 765; Board v. Barrie, 34 N. Y. 659; People v. Murray, 149 N. Y. 367, 44 N. E. 147, 32 L. R. A. 344. A license to carry on the liquor traffic is revoked or annulled by the repeal of the law authorizing the granting of such license, or by any change in the legislation of the state or district inconsistent with the further exercise of the right conferred by the license, such as the adoption of a prohibitory amendment to the Constitution, statute, or a local option law. Prohibitory Amendment Cases, 24 Kan. 700; State v. Tonks, 15 R. I. 385, 5 Atl. 636; Pleuler v. State, 11 Neb. 547, 10 N. W. 481; Hirn v. State,, 1 Ohio St. 15; Hogan v. Guigon (Va.) 29 Grat. 705; Kresser v. Lyman (C. C.) 74 Fed. 765; Brown v. State, 82 Ga. 224, 7 S. E. 915; State v. Mullenhoff, 74 Iowa, 271, 37 N. W 329; State v. Holmes, 38 N. H. 235; State v. Cooke, 24 Minn. 247, 31 Am. Rep. 344; Ex parte Lynn, 19 Tex. app. 293; Robertson v State, 12 Tex. app. 541; Moore v. State, 16 Miss., 137; Sprayberry v. Atlanta, 87 Ga. 120, 13 S. E. 197.

In the case of Criswell v. Montana Central Ry. Co., 18 Mont. 172, 44 Pac. 525, 33 L. R. A. 554, the court held that by a Schedule rights were preserved, and it operated of itself to keep in force a system of laws for the government of the state, unless such laws were inconsistent with the Constitution. But that, as to such repugnant statutes, it operated as an effective repeal, for when the Constitution became the fundamental law, acts in conflict with it yielded; and when the question of a conflict is presented to the court, and the conflict clearly appears, the statute must be decided to be inoperative and void. In the case of Watsl v Montana Central Ry. Co., 24 Mont. 170, 61 Pac. 9, the court in construing section 1 of the Schedule to the Constitution, which is substantially the same as ours, said:

“The Constitution operated upon the statute so as to prevent other rights from accruing thereunder, but under its saving clause, as expressed in the section of the Schedule quoted, the right already accrued was preserved to be enforced ‘under the laws of the state/ whatever they might be; for, after the right became fixed its enforcement no longer depended upon the statute, but was to be governed by the general provisions of the Code, suitable to the enforcement of all rights, without regard to their origin. This being our conclusion, it is not necessary to discuss what would have been the effect upon plaintiffs right in the absence of this section of the Schedule. An inquiry upon this subject would necessarily lead to an examination of the question whether the right asserted by the plaintiff under the statute is ‘property’ within the meaning of the fourteenth amendment of the Constitution of the United States, and whether the section of our Constitution (section 2, art. 15), which repealed the statute, is within the malediction of the first ’section, of that amendment.”

Sections 1 and 9 of the Montana Schedule are substantially the same as sections 1 and 2 of that of Oklahoma.

It is earnestly insisted by counsel for the plaintiff in error that the privilege of engaging in the liquor traffic by virtue of a license is right; but, under the authorities heretofore referred to, it is only such a right or privilege as is subject to be discontinued at the will of .the legislative power. The laws permitting the license of the liquor-traffic (article 1, c. 49, Wilson’s Rev. & Ann. St. 1903), at the time of the admission of the state into the. Union, were repugnant to the provisions of said prohibition article of the Constitution, and consequently did not extend to and remain in force in the state of Oklahoma after the admission of the state. Section 2, Schedule to Const. Okla.; section 451, Bunn’s Ed.; Snyder’s Ed. p. 381; Gen. St. Ann. Okla. 1908, p. 153. The law under which the license existed having failed, the right to continue business thereunder ceased. The validity of the license ceased with the repeal of the law by virtue of which it came into legal existence; the proclamation admitting the state of Oklahoma into the Union striking down the liquor license law, which prior to that time existed in Oklahoma Territory.

In the case of Allsman et al. v. State of Oklahoma, decided hy this court on May 13, 1908, 21 Okla. 142 (95 Pac. 468, 16 L. R. A. [N. S.] 511), it was fold that in any action to recover a certain sum the unearned portion of a license fee, paid by licensees to licensor while a city of the first class, organized and existing under the laws of the territory of Oklahoma, for a license duly issued, to sell malt, spirituous and vinous liquors, the petition which states that by reason of the ratification and adoption of the Constitution of the State, together with the prohibitory clause as a part thereof^ by vote of the qualified electors of said proposed state on September 17, 1907, prohibiting the sale of such liquors within said territory upon its admission into the Union, and that said city since that time, without fault of the licensees, forced said licensees to close their place of business and cease to sell such liquors under their said license, under threats of prosecution, sufficiently states a cause of action-, and a demurrer thereto was improperly sustained. The question raised here was not discussed in that case, but it was necessary to assume that such license was revoked by the adoption of the Constitution before Oklahoma city would have had a right thereby to prevent, by prosecution, such parties from carrying on their business, under such license, on the ground of the adoption of said prohibition article. We conclude that the rights referred to in section 1 of the Schedule to the Constitution do not include such rights as the exercise of which depends upon a law, the repeal of which abrogates the continuance of such right, when the continuance of same is repugnant to the spirit, as well as the letter, of the Constitution. Cusic v. Douglas, 3 Kan. 123, 87 Am. Dec. 458.

We accordingly .conclude that a liquor license, the time for which it was issued not having expired at the time the state of Oklahoma was admitted into the Union, was revoked and discontinued when said Constitution became effective.

All the Justices concur.


source: Caselaw Access Project

license: Public Domain

text:
      Ex parte McNaught.
    No. 598.
    Opinion Filed February 23, 1909.
    (100 Pac. 27.)
    1. CONSTITUTIONAL LAW — Self-Executing Provisions — Prosecution of Felony by Information. Section 17, art. 2 (Bill of Rights), of the Constitution of Oklahoma (Bunn’s Ed. sec. 26), which provides that: "No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information. No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination” — is effective, and, as supplemented by the provisions of the common law in force in this jurisdiction (Wilson's Rev. & Ann. St. 1903, c. 66, art. 1, sec. 4200), and chapter 68, art. 5 (Cr. Proc.) Wilson’s Rev. & Ann. St. 1903, sections 6216-5303, supplies a sufficient rule by means of which the right given under said section may be exercised or enforced.
    2. SAME — Adoption of Constitution — Operation as to Laws Previously in Force — -Repugnant Statutes. Section 17, art. 2 (Bill of Rights), of the Constitution '(Bunn’s Ed. sec. 26) being self-enforcing, at all events to the extent that the prohibition therein declared became immediately effective, to the effect that -prosecutions for felonies shall be had by means of indictment or information, section 5304, Wlilson’s Rev. & Ann. St. 1903, providing that no person shall be -prosecuted for felony in the district courts except by indictment, being repugnant thereto, was not extended to, and did not remain in force in, the state of Oklahoma after its admission into the Union.
    3. SAME — Due Process — Criminal Prosecutions — Preliminary Examination. Chapter 66, art. 1, sec. 4200 (Civ. Proc.) Wilson's Rev. & Ann. St. 1903, declares that the common law, as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma and chapter 68, art. 5 (Cr. Proc.) Wilson’s Rev. & Ann. St. 1903, sections 5216-5303, makes provision for the examination, by a magistrate, of the accused, .who is to be present and allowed a reasonable time and means to send for or procure counsel, and the right of cross-examination of the witnesses produced on the part of the prosecution, and of producing witnesses to be sworn and examined on his behalf. Such depositions taken -on Such examination and the statement of the defendant, in the event he -elects to be sworn and testify or malee a statement in his own behalf, must be kept by the magistrate or his clerk until they are turned over to the proper court, and must not be permitted to’be inspected by any person except the judge of a court having jurisdiction of the -offense, the prosecuting attorney, and the defendant and his counsel. After hearing all the evidence or statements, if it appears to such magistrate that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof, such accused shall be ordered to be held to answer such charge. Held, that a conviction upon an information for manslaughter in the first degree, and a sentence to the penitentiary for the term of his natural life on such verdict, are not illegal by virtue of the provision of the Constitution of the United States, which prohibits the states from depriving any person of life, liberty, or property without due process of law.
    (Syllabus by the Court.)
    Application by George W. McNaught for a writ of habeas corpus.

    Writ denied. Prisoner remanded.
    On the nth day o.f January, A. D. 1909, the relator filed his petition in this court, alleging that on the 28th day of September, A. D. 1908, at a regular term of the district court of Kingfisher county, state of Oklahoma, the county attorney of said county filed in said court a certain information in two counts, charging him with the crime of murder and manslaughter. That thereafter, to wit, on the 29th day of September, A. D. 1908, relator appeared in open court, and entered his plea of “not guilty” to the charge under said information. That during said term of court the relator was placed on trial, and on the 20th day of October, A. D. 1908, the jury returned into open court its verdict in said cause, in words and figures as follows, to wit: “We, the jury in the above-entitled cause, do upon our oaths find the defendant, George W. McNaught, guilty of manslaughter in the first degree, as charged in the second count of the information.” That on the 23d day of October, A. D. 1908, relator’s motion for a new trial was overruled b3r said court; and Exceptions allowed, and sentence was then and there pronounced against him upon -the verdict of the jury, sentencing him to imprisonment in .the state prison for the term of his natural life. Thereupon the relator was notified by the district court of his right of appeal to the Criminal Court of Appeals of the state of Oklahoma, and his bail was fixed in the sum of $15,000, and allowed 30 days from that date within which to give said bond, with sufficient sureties, to be approved by the clerk of said court, and he was further allowed 120 days from said date within which to file petition in error in said Criminal Court of Appeals, and further allowed 90 days therefrom within which to make and serve a case-made for such appeal, with io days thereafter to the state of Oklahoma to suggest amendments thereto; said case-made to be settled and signed upon 5 day’s notice in writing by either party, thereto.
    On the 7th day of December, A. D. 1908, relator applied to the Criminal Court of Appeals of the state of Oklahoma for a writ of habeas corpus, which was issued and made returnable before said court, and on the nth day of January, A. D. 1909, said court discharged said writ, and remended relator to the custody of the sheriff of Kingfisher county, state of Oklahoma. Thereupon said prisoner applied to this court for a writ of habeas corpus.

      F. P. Whistler and D. K. Cunningham, rof relator.

      Chas. West, Atty. Gen., and W. C. Reeves, Asst. Atty. Gen., M. W. Huch, and Bradley &.Bradley, for respondent.
   Williams, J.

(after stating the facts as above), The relator, having invoked the jurisdiction of the Criminal Court of Appeals by writ of habeas corpus, and the prisoner being remanded by said court to the proper custody (In re McNaught, post. Part 11., 99 Pac. 241), the jurisdiction of this court, by such writ is now invoked. The question arises as to whether or not section 17, art. 2, (Bill of Rights), of the Constitution (Bunn’s Ed. § 26), which provides that: “No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information. No person shall be prosecuted for a felony 'by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination” — is effective without legislation. Section 1, art. 14, of the Constitution of the United States provides:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the Uhited States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Section 2 of said article also provides:

“Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed,” etc.

Mr. Cooley, in his admirable work (Cooley’s Const. Lim. [7th Ed.] pp. 119, 120), says:

“The fifteenth amendment provides that ‘the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any state, on account of race, color, or previous condition of servitude.’ To this extent it is selL executing, and of its own force abolishes all distinctions .in suffrage based on the particulars enumerated. But when it further provides that ‘Congress shall have power to enforce this article by appropriate legislation,’ it indicates the possibility that the rule may not be found sufficiently comprehensive or particular to protect fully this right to equal suffrage, and that legislation may lie found necessary for that purpose.”

Section 2, art. 12, of the Constitution of Kansas, 1859, provides :

“Dues from corporations shall be secured by individual liability of the stockholders to an additional amount equal to the stock owned by each stockholder, and such other means as shall be provided by law; but such individual liabilities shall not apply to railroad corporations, or corporations for religious or charitable purposes.”

In the case of Whitman v. National Bank of Oxford, 176 U. S. 562, 20 Sup Ct. 477, 44 L. Ed. 590, Mr. Justice Brewer, in delivering the opinion of the court, said:

“This liability is for the dues.of the corporations, and to an amount equal to the stock owned by him. The word ‘dues’ is one of general significance, and includes all contractual obligations. Whether broad enough to include liabilities for torts, either before or after judgment, is not a question before us, and upon it we express no opinion. The words ‘shall be secured’ are not merely directory to the Legislature to make provision for such liability, but of themselves declare it. To this extent the Constitution is self-executing. Willis v. Mabon, 48 Minn. 140, 50 N. W. 1 no, 16 L. R. A. 281, 31 Am. St. Rep. 626. The discretion of the Legislature extends beyond this, as indicated by the clause ‘and such other means as shall be provided by law.’ A failure of the Legislature to create courts or prescribe modes of procedure may, it is true, make ineffective this constitutional provision, but does not destroy the liability; nor is it created by the act of the Legislature prescribing the mode of its enforcement. This is the obvious meaning of the constitutional provision. ‘The simplest and most obvious interpretation of a constitution, if in itself sensible, is the most likely to be that meant by the people in its adoption.’ Lamar, Justice, in Lake County v. Rollins, 130 U. S. 662, 9 Sup. Ct. 651, 652, 32 L. Ed. 1060.”

A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law. State v. Scales, 21 Okla., 683, 97 Pac. 587; Cooley’s Const. Lim. (7th Ed.) p. 121.

In the case of Mc Donald v. Patterson, 54 Cal. 246, a portion of section 19, art. 11, of the Constitution of 1879, was under review. It is in words and figures as follows:

“No public work or improvement of any description whatsoever shall be done or made, in any city, in, upon, or about the streets thereof, or otherwise, the cost and expense of which is made chargeable or may be assessed upon private property by special assessment, unless an estimate of such cost and expense shall be made, and an assessment in proportion to the benefits on the property to be affected or benefitted shall be levied, collected, and paid into the city treasury before such work or improvement shall be commenced, or any contract for letting or doing the same authorized or performed.”

The court said:

“It is conceded that the cost and expense of the sewer to be constructed under the alleged contract is, by the terms of the statute under which this contract was awarded, chargeable, and must be assessed, upon private property by special assessment. Of this meaning of the statute we entertain no doubt. It is contended before us that the street law act of April 1, 1872 (see Stats. 1871-72, p. 804), is continued in force by the first section of article 22 of the Constitution, inasmuch as it is only inconsistent with provisions of the Constitution which require legislation to enforce them; that the act referred to is a system for the improvement of the streets, and the intention manifested by the section of the Constitution referred to is that the system under this act of the Legislature shall be operative until the Legislature shall adopt another system under the Constitution, observing in such system the prohibition of the nineteenth section of article n, that should the Legislature, however, fail to adopt such new system, the former one ceases to be of force on the 1st day of July, 1880. * * * The language of section 19, art. 11, is both mandarory and prohibitory in its character. It is clear and unambiguous! It is difficult to see that it could have been made stronger in its words of command and prohibition. What words more vigorous or more appropriate to their manifest purpose could have been found in the whole compass of the English tongue we are at a loss to determine. It says, as plainly as words can disclose: ‘We command that no such work as that referred to shall at any time be done, except as herein set down, and we prohibit any suc.lf work from being done at any time in any other way.’ It is mandatory and prohibitory to every department of the government, and - every officer of each department. By its very terms it is binding upon all, and goes into effect as soon as the Constitution becomes the organic law, as it is strongly prohibitory. We could not hold otherwise, without disregarding the plain meaning of words. * * * In our opinion this section [section 19, art. 11] requires no legislation to enforce it; and, further, that the provisions of the act of April 1, 1872, authorizing the superintendent of streets, etc., of the city and county of San Francisco to execute the contract under consideration, ceased to be operative on the 1st day of January 1880, as inconsistent with the section referred to.”

In the case of Donahue v. Graham, 61 Cal. 276, the case of Mc. Donald v. Patterson, supra, was followed. In the case of Oakland Paving Co. v. Hilton, 69 Cal. 483, 11 Pac. 3, the court again adhered to the rule announced in the case of McDonald v. Patterson, supra, and said:

'“The constitutional provision is prohibitory in its language, and when that is the case no legislation is required to execute such provision. It is then self-executing — operating proprio vigore. The Constitution, in regard to contracts for street work presents in itself a complete rule in the particular mentioned. It requires no legislation to make it more complete. Every constitutional provision is self-executing to this extent: That everything done in violation of it is void. Brien v. Williamson, 7 How, (Miss.) 14. The fifteenth amendment to the Federal Constitution provides that ‘the right of citizens of the United States to vote shall not be abridged by the United States, or by any state, on account of race, color, or previous condition of servitude.’ This provision is self-executing to the extent that of its own force it abolishes all distinctions in suffrage based or. the particulars mentioned (Cooley’s Const. Linn. 133), whether these distinctions existed in a statute subsisting when the amendment went into operation, or whether the statute’ was subsequently enacted. The same may be said of the provision of the same Constitution that no state shall pass a law impairing i-lie obligation of contracts (article 1, § 10, Const. U. S.) as of all the matters prohibited by section 10, art. 1, just cited. See Ewing v. Oroville Mining Co., 56 Cal. 649. Nor is this section 19 limited to prohibiting the Legislature from passing laws authorizing contracts in the future in violation of its provisions. It does this, but it does more. It operates on all contracts for street work, whether entered into under laws existing when the. section went into effect, or under statutes subsequently enacted. Whenever a case arises presenting a contract of the character indicated, it operates to declare such contract void and of no effect. See County of Los Angeles v. Lamb, 61 Cal. 198. In fact it is the solemn declaration of the paramount organic law operating’ on all departments of the government, expressed in the clearest and strongest language of prohibition. No act can be done by. any department contrary to its provisions. It is a law absolutely controlling the legislative, executive, and judicial departments of the government. It takes effect on laws already passed, as well as to those to be enacted in the future. * * * By the express declaration of the first section of article 22 of the Constitution, all laws inconsistent with the Constitution ceased when that instrument began to operate. * * *”

Negative or prohibitory provisions in a Constitution require no legislation, as a rule, to carry the mere prohibition declared into effect. American Union Tel. Co. v. Western Union Tel. Co., 67, Ala. 30, 42 Am. Rep. 90; De Turk v. Commonwealth, 129 Pa. 151, 18 Atl. 757, 5 L. R. A. 853, 15 Am. St. Rep. 705; State v. Woodward, 89 Ind. 110, 46 Am. Rep. 160; Law v. People, 87 Ill. 385; Washingtonian Home of Chicago v. City of Chi cago, 157 Ill. 414, 41 N. E. 893, 27 L. R. A. 802; Synod of Dakota v. South Dakota, 2 S. D. 366, 50 N. W. 632, 14 L. R. A. 421; Householder v. Kansas City, 83 Mo. 495; Hickman v. Kansas City, 120 Mo. 116, 25 S. W. 225, 23 L. R. A. 662, 41 Am. St. Rep. 684; Ex parte Cain, 20 Okla. 125, 93 Pac. 975.

The clause “no person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information,” as said by Mr. Justice Brewer in Whitman v. National Bank of Oxford, supra, is not merely directory to the Legislature to make provision to that end, but of itself declares it. To this extent said provision ot the Constitution is self-executing, and it also comes within the rule laid down by Mr. Cooley that a provision may be said ro be self-executing if it supplies a sufficient rule by means of wliich the right given may be enjoyed or protected, or the duty imposed enforced. For by the common law, which is in force in this jurisdiction (Civ. Proc. c. 66, art. 1; Wilson’s Rev. & Ann. St. 1903, § 4200), in aid of the general statutes of this state, informations, as employed in this section having a common law meaning (Mayor of Mobile v. Stonewall Ins. Co.., 53 Ala. 577; Ex parte Roundtree, 51 Ala. 44; English v. State, 31 Fla. 341, 12 South. 689; State v. Barker, 107 N. C. 917, 12 S. E. 115, 10 L. R. A. 50; Favell’s Case v. Watts & Serg. (Pa.) 198; Cooley’s Const. Lim. (7th Ed.) p. 94), were exhibited by the Attorney General (Evans v. Willis, 22 Okla, 97 Pac. 1048), and with us the powers which in England were exercised by the Attorney general or Solicitor General are largely distributed among our county attorneys, whose office does not exist in England. The latter officers seem to be entitled, under the common law here in force, to prosecute by information. State v. Kelm, 79 Mo. 515; Evans v. Willis, supra, ; State v. Houston, 21 Okla. 782, 97 Pac. 995. In the latter case the court said:

“It is the duty of the county attorney, except as otherwise provided, to prosecute and defend all actions, both civil and criminal, in the district and county courts in which the state is a party or interested.”

In the case of State v. Kelm, supra, the court said:

“Bishop (section 144) says: ‘In our states tire criminal information should be deemed to be such , and such only, as in England is presented by the Attorney or Solicitor General. This part of the English common law has plainly become common law with us. And as with us the powers which in England are exercised by the Attorney General, are largely distributed among our district attorneys, whose office does not exist in England, the latter officers would seem to be entitled, under our common law, to prosecute by information as a right tdhering to their office, and without leave of court.’ Wharton lays down the same doctrine. Crim. Pl. & Pr. (8th Ed.) § 87.”

The case of State v. Kelm was cited with approval in the case of Evans v. Willis, supra.

In the case of State v. Kyle, 166 Mo. 295, 63 S. W. 764 (56 L. R. A. 115), the court said:

“ ‘By the law of England informations by the Attorney General without the intervention of a grand jury were not allowed for capital crimes, nor for any felony, by which was understood any offense which at common law occasioned a total forfeiture of the offender’s lands, or goods, or both. 4 Black. Com. 94, 95, 310. The question whether the prosecution must be by indictment, or might be by information, thus depended upon the consequences to the convict himself.’ Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89; 1 Bishop’s New Criminal Procedure, §§ 141, 542. And not until the amendment of section 12, art. 2, of the state Constitution, adopted at the general election held on November 8, 1900, by which it is provided that ‘no person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information, which shall be concurrent remedies,’ could a person be prosecuted criminally in this state for felony otherwise than by indictment. * * *”

On page 303 the court further said:

“In the Kelm Case it was held that the term ‘information,’ as used in article 2, § 12, of the state Constitution of 1875 (Ann. St. 1906, p. 134), was to be understood in its common-law sense — that is, a criminal charge which at common law is presented by the Attorney General, or if that office is vacant, then by the Solicitor General of England, and in this state by the prosecuting attorneys of the respective counties who exercise the same powers as are exercised by the Attorney General or Solicitor General of England — that is, the power to present in-formations under their official oaths.”

In the case of State v. Pohl, 170 Mo. 428, 70 S. W. 695 the case of State v. Kyle, supra, was approved. In the case of State v. Vinso, 171 Mo. 587, 71 S. W. 1037, the court said:

“In State v. Kyle, 166 Mo. 287, 65 S. W. 763, 56 L. R. A. 115, we held that ‘information’ as used in our Constitution, means the common-law information; and, in the absence of statutory provisions to the contrary, the common-law practice prevails, and we have seen amendments proper were allowed at common law as a matter of course at any time before trial. State v. White, 64 Vt. 372, 24 Atl. 250.”

In the case of State v. Bonner, 178 Mo. 430, 77 S. W. 464, the court said:

“In State v. Kyle, 166 Mo. 287, 65 S. W. 763, 56 L. R. A. 115, the court in-banc held that the amendment took effect from the time of the canvass of the vote on the amendment by the Secretary of State, and it was self-enforcing and operative from the date it took effect, to wit, December 19, 1900. * * * .So that, while there was no statutory method of procedure provided when the Kyle Case arose, and for that reason the common-law form of information was adjudged sufficient when this prosecution was commenced, there was a specific statutory provision governing this method of prosecution, and one which no one will question the right of the Legislature to prescribe. When our General Assembly took this subject in hand and directed the form of prosecutions by information, the common law on this subject no longer obtained. It was the obvious purpose of the Legislature, in view of the amendment to the Constitution, to revise the whole subject-matter of the prosecutions by information, and to make article 3, c. 16, Rev. St. 1899 (Ann. St. 1906, p. 1485), uniform in its operation as to all grades of crime, and it must be held that the acts of March 13, 1901, (Laws 1901, pp. 138, 139 [Ann. St. 1906, § 2476D, operated to supersede the common law on the subject, and that they were intended to prescribe the only rules of procedure which should govern siuh prosecutions,”

Again, the succeeding clause in said section, “no person shall be prosecuted for felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination,” also appears to be mandatory, as well as prohibitory, and to declare. a rule, and comes also not only within the rule declared by Mr. Justice Brewer in the case of Whitman v. National Bank of Oxford, supra, but within the purview of the foregoing doctrine announced by Mr. Cooley.

The question then arises, the said section, prohibitory in its character, being self-enforcing to that extent,' and supplying the rule that a felony might be prosecuted by information, as employed by the common law in force in this jurisdiction and modified by statute, and the rule announced in said section further requiring, as a condition precedent to such prosecution by information, that the accused should first have a preliminary examination before an examining magistrate or waive the same, whether or not the statutes of the state furnish procedure and machinery for such purpose. We think so. Chapter 68, art. 5 (Cr. Proc.) Wilson’s Rev. & Ann. St. 1903, §§ 5216-5303, affords, in comprehensive detail, all the machinery for preliminary examinations before examining magistrates: The accused must be present; a reasonable time and means for sending for, or for his procuring, counsel; the right of cross-examination of witnesses produced by the prosecution, and of producing witnesses in his behalf; the testimony of the witnesses, including the statement or evidence of the defendant in the event he elects to be sworn and testify or make a statement, all to be reduced to writing or reported by the magistrate or his clerk, and to be retained by such magistrate or clerk until the same is turned over to the proper court, not to be open to inspection by any person whatever, ■ except the judge of the court having jurisdiction of the offense, the prosecuting attorney, and the defendant and his counsel; the accused to be held by the magistrate to answer 'the accusation if he finds that a public offense has been committed and there is sufficient cause to believe the accused guilty thereof. Hence we find that the section of the Constitution under consideration, prohibitory in its character, is at all events self-enforcing to the extent that prosecutions may be had for felonies by means of information. The rule supplied requires two conditions: The existence- of statutes or law providing for the charging of the offense by information, and for preliminary examination of the accused before a magistrate. We find that all of these conditions are met by the laws now in force in the state.

But let us further consider said section 17 in the light of other sections of said article 2 (Bill of Rights) of the Constitution. Section 20 provides that the accused shall have the right to a speedy and public trial; shall be informed of the nature and cause of the accusation, and have a copy thereof, and in capital cases, at least two days before the case is called for trial, shall be furnished with a list of the witnesses, with their post-office addresses, that will be called in chief to prove the allegations of the indictment or information; section 19 that all prosecutions shall be carried on in the name and by the authority of the state oí Oklahoma, and all indictments, informations, and complaints shall conclude “against the peace and dignity of the state;” section 18 that a grand jury shall be convened upon the order of a judge of a court'having jurisdiction of felonies, upon his own motion, or such grand jury shall be ordered by such judge upon the filing of a petition therefor by 100 resident taxpayers of the county, with a proviso that the Legislature may make the calling of a grand jury compulsory. The foregoing are all mandatory and self-executing or self-enforcing in their nature, and evidently contemplate prosecutions of felonies by'means of an information.

Reference might also be made to other provisions of like nature in said article: Section 22 providing that -in all prosecutions for libel the same may be justified by proving the truth of the charge and good faith on the part of the accused; section 27 making it compulsory to give evidence, and providing for immunity; section 30 relating to the right of the people to be secure in their persons, houses, papers, and effects against all unreasonable searches and seizures, and restraining the issuance of warrants except upon probable cause supported by oath or affirmation, describing, as particularly as may be, the place to be searched and the person or thing to Be siezed. These provisions may be considered together for the purpose of ascertaining the intent of the framers and those ratifying the Constitution. Practically all of said sections, under the rules herein referred to, are self-enforcing; and, when we consider the fact that it is within the discretion of the district judge tó call a grand jury, unless the taxpayers, 100 in number, petition him therefor, in connection with the proviso that the Legislature may make it compulsory on him to do so, the strong presumption arises that it was the intention in framing this section that the expense incident to a grand jury and the investigations thereby might Be obviated, except when within the discretion of the presiding judge it was necessary, unless the Legislature in its sovereign discretion might determine otherwise.

But it is suggested that section 5304, Wilson’s Rev. & Ann. St. 1903, provides that no person shall be prosecuted for a felony in the district courts except by an indictment, and for that reason prosecutions for felonies by information are not permissible as long as said section stands. Section 2 of the schedule to the Constitution provides that “all laws in force in the territory of Oklahoma at the time of the admission of the state into the Union, which are not repugnant to this Constitution, and which are not locally inapplicable, shall be extended to and remain in force in the state of Oklahoma until they expire by their own limitation or are altered or'repealed by law.” If said section 5304 is repugnant to section 17, art. 2,- of the Constitution, it follows that the same was not extended to, and did not remain in force in the state after its admission into the Union.

The question might further arise, though it is not now necessary to be determied for the proper disposition of this case, as to whether or not section 5306 (Cr. Proc. c. 68, art. 6, § 170), Wilson’s Rev. & Ann. St. 1903, which provides that: “The county attorney shall subscribe his name to informations filed in the probate or district court and indorse thereon the names of the witnesses known to him at the time of filing the same. He shall also indorse thereon the names of such other witnesses as may thereafter become known to him, at such time before the trial as the court may by rule prescribe. All informations shall be verified by the oath of the prosecuting attorney, complainant or some other person: Provided, that when an information in any cáse is verified by the county attorney, it shall be sufficient if the verification be upon information and belief”-— was extended to and remains in force in this state until altered or repealed by law, by virtue of section 2 of the schedule to the Constitution. Such would be the case, unless it is repugnant to the provisions of section 20, art. 2, to the effect that the accused “shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. Pie shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief to prove the allegations of the indictment 01 information,together with their post-office addresses.” If section 5306, supra, .was repugnant to said section, it was not in force after the admisison of the state into the Union; otherwise it did remain in force, and the common law as to informations would be modified to the extent that said section 5306 may conflict therewith. Under the common law it was not necessary that an information should be verified by the Attorney General or Solicitor General Evans v. Willis, 22 Okla. 97 Pac. 1048; State v. Pohl, 170 Mo. 428, 70 S. W. 695. Said section 5306 does not seem, though we do not now pass thereon, to be repugnant to the provisions of said section 20, art. 2, but supplementary thereto; nor does it appear to have operated to supersede the common law other than to modifj same in regard to informations. For said section does not cover the whole subject-matter of prosecutions by information as is provided for by section 17, art. 2, of the Constitution. Having reached the conclusion that said section 17, art. 2, is self-enforcing, at least to the extent that it immediately became effective as to the prohibition declared therein, which is to the effect that prosecutions for felonies shall be had by means of indictment or information, said section 5304, supra, is clearly repugnant thereto. Campbell et al. v. State ex rel. Brett, 99 Pac. 778, and Arie v. State, 100 Pac. 23, (recently decided by this court, but not yet officially reported); McDonald v. Patterson, supra ; Donahue v. Graham, supra ; Oakland Paving Co. v. Hilton, supra ; Cass v. Dillon, 2 Ohio St. 608; Ohio ex rel. Evans v. Dudley, 1 Ohio St. 437; Washington Home of Chicago v. City of Chicago, supra; Brien v. Williamson, 7 How. (Miss.) 14.

There can be no question but that where it is provided in a state Constitution, in such a way that it is self-executing or made effectual by supplementary legislation, that a citizen may be tried for a felony by information, such citizen is not deprived of any rights under the federal Constitution. Lybarger v. State, 2 Wash. 555, 27 Pac. 449, 1029; Hurtado v. California, 110 U. S. 516, 4 Sup. Ct. 292, 28 L. Ed. 232; Barron v. Mayor, etc., of Baltimore, 7 Peters, 243, 8 L. Ed. 672; Twitchell v. Pennsylvania, 7 Wall. 321, 19 L. Ed. 223; Fox v. Ohio, 5 How. 432, 12 L. Ed. 213; McNulty v. California, 149 U. S. 645, 13 Sup. Ct. 959, 37 L. Ed. 882.

No question will be considered on this- application to this court in this case other than that as to the construction of the provisions of section 17, art. 2, of the Constitution, and as to whether or not relator may be prosecuted in the district court of Kingfisher county for a felony by means of an information, and, being so prosecuted, whether or not.he was deprived by the-state of Oklahoma of any rights under the federal Constitution, such questions pertaining to the jurisdiction of the district court of Kingfisher county. Ex parte Patman, 20 Okla. 846, 95 Pac. 622, and other authorities cited in Re McNaught, Post, Part II. 99 Pac. 241.

Having determined all these questions against the relator, the writ of habeas corpus is hereby discharged, and the prisoner remanded to the custody of the sheriff of said county.

All the Justices concur.


author: FURMAN, Presiding Judge.

text:
    Thomas Slater v. United States.
    No. 605,
    Ind. T.
    Opinion Filed October 16, 1908.
    (98 Pac. 110.)
    1. APPEAL AND ERROR — Review of Evidence Unnecessary. .When an assignment of error, that the evidence does not support the verdict, is overruled, and the cause remanded upon errors of law, the court will not discuss the evidence.
    2. NEW TRIAL — Newly Discovered Evidence — Affidavits—Sufficiency. In a motion for a new trial, upon the ground of newly discovered evidence, the affidavit of the defendant should set out the proposed evidence, and it must be such as could not have been secured at the former trial by reasonable diligence on the part of the defendant, and the diligence used must be stated in the affidavit. The affidavit of the witness should, if possible, accompany the motion.
    3. WITNESSES — Credibility—Conviction of Crime. For the purpose of affecting the credibility of a witness he may be asked, on cross-examination, if he has been convicted of a felony or of any crime' which involves a want of moral character; but it is improper to ask such witness if he has been indicted, arrested, or imprisoned, before conviction, for any offense whatever.
    4. INSTRUCTIONS — Possession of Stolen Property — Presumption. It is error to instruct a jury that the possession of -property recently stolen raises a presumption against the party having such possession, which requires an explanation from him; this being a charge upon the weight of the evidence.
    5. TRIAL — 'Conduct of Court — Intimation of Opinion. It is improper for a trial judge, either directly or indirectly, to let the jury know, or even to intimate to them, what his , opinion is as t.o the credibility of any witness testifying in a case before him.
    (Syllabus by the Court.)

      Appeal .from the United States Court for the Central District of the Indian Territory; T. C. Humphrey, Trial Judge.

      Thomas Slater was convicted, in the United States Court for the Central District of the Indian Territory, of larceny. An appeal was prosecuted to the United States Court of Appeals for the Indian Territory and transferred to the Supreme Court of Oklahoma under the enabling act (Act. June 16, 1906, c. 3335, 34 Stat. 267), and thereafter to the Criminal Court of Appeals.
    Reversed and remanded.

      J. G. Ralls, for appellant.
    On the question of whether, on cross-examination, a witness may be asked if he has been indicted or arrested: Anderson v. State, 34 Ark. 257; Van Bokkelein v. Bardell, 130 N. Y. 141. The presumption attaching to the possession of recently stolen property: Denmark v. State, 58 Ark. 576; Shepard v. State, 44 Ark. 39; Boykin v. State, 34 Ark. 443-

      T. B. Latham and W. C. Reeves, Asst. Attorney General, for the United States.
    On the question of showing necessary to secure new trial on ground of newly discovered evidence; Runnels v. State, 28 Ark. 121; Anderson v. State, 41 Ark. 229; White v. State, 17 Ark. 404; Bixby v. State, 15 Ark. 398; Hamlin v. State, 48 Conn. 92; Whar. Cr. PI. and.-Pr. Secs. 862, 866, 871. On the question of proper cross-examination in discrediting witness by asking if he had been charged with crime: Hollingsworth v. State, 53 Ark. 391; Baker, v. State, 58 'Ark. 523 ;Oxier v. United States, 1 Ind. Ter. Rep. 93; Burdett v. Com. 93 Ky. 76; State v. Taylor, 118 Mo. 153; State v. Ezzell and Ivey, 41 Tex. 35; Whar. Cr. Ev., Secs. 432, 473, 474, 567, 991; Gillett on Indirect and Col. Ev., sec. 91.
   FURMAN, Presiding Judge.

Appellant was convicted on the 28th day of January, 1905, in the United States Court for the Central District of the Indian Territory, upon an indictmeut charging him with the iarceny of a horse, and his punishment was assessed at imprisonment in the United States penitentiary for the period of six years. An appeal was prosecuted to the United States Court of Appeals for the Indian Territory, and was pending in that court when the state of Oklahoma was admitted into the Ulnion. Under the provisions of the enabling act (Act June 16th, 1906, c. 3335, 34 Stat. 267) and the Constitution of Oklahoma, this cause was then transferred to the Supreme Court of Oklahoma. Upon the creation of this court, the Supreme Court, as directed by statute, transferred this case to the Criminal Court of Appeals. The evidence for the prosecution is circumstantial.

First. Appellant assigns, as error, and complains of the action of the trial court in not sustaining his motion for a new trial, upon the ground that the testimony does not support the verdict against him. As this case will be remanded for a new trial on account of errors of law herein after pointed out, we do not care to discuss the testimony further than to state that we approve the action of the trial court upon this question.

Second. Appellant assigns, as error, and complains of the action of the trial court in not sustaining his motion for a new trial upon the ground of newly discovered evidence. Touching this matter, the motion for a new trial is as follows: ,

“Since the trial of this action, the defendant has discovered material evidence to his defense that he did not know of prior to the trial. That since said trial he has discovered that one Sim Jami-son and J. J. Sparks, who lives near Oconee, Choctaw Nation, Indian Territory, and who is over 60 years of age, will testify taht about 2 o’clock in the night that the horse was stolen a man came to Sparks’ and Jamison’s riding the horse, which was a white horse or an iron gray horse that would be called white, and not branded, and stated to said Jamison and Sparks that he was lost, and asked to stay with him the balance of the night. Jamison let him stay the balance of .the night, and that the man left Jamison’s camp shortly after daylight and started in the direction of Oconee. That the horse the man was riding was -the horse that had been stolen from Birchfield, and that the defendant was not the man that had the horse and was not.with him. That the man that was riding the horse was a stranger to Sparks and Jamison, but that Sparks and Jamison will testify that if they would see the man again they would know him. Defendant says that this is material and new evidence, and that he believes the same to be true, and that he is not guilty of the crime.”

The record does not contain any affidavit from the proposed witness, Sim Jamison. It contains an affidavit from J. J. Sparks, which is substantially the same as that of the appellant.

In Runnels v. State, 28 Ark. 121, it is said:

“Applications for new trials on the ground of newly discovered evidence are to be rceeived with caution, and this in proportion to the magnitude of the offense. The application should be corroborated by the. affidavits of other persons than the accused, and, if possible, those of the newly discovered witnesses themselves, and it is not sufficient for the applicant to the state that he did not know of the existence of the testimony in time to have brought it forward on the trial; but it must appear that he could 13 Ark. 362; Graham & Waterman, New Trials, vol. 1, pp. 462, 485, and cases cited.”

In Twine, Saddler & Sawner v. Alice Kilgore, 3 Okla. 643 39 Pac. 389, Judge Burford said:

“An application for a hew trial on the ground of newly discovered evidence must show that the appellant used diligence to procure and present the evidence upon the trial, and the facts showing due diligence must be shown,.so that the court may determine whether the diligence used was sufficient. Allen v. Bond, 112 Ind. 523, 14 N. E. 492; Hamm v. Romine, 98 Ind. 77. There is no showing in the case at bar that the defendant used any diligence whatever to procure the testimony upon which their motion for a new trial is based, nor is there any allegation to the effect that, they had no knowledge of such, evidence prior to the trial of said cause.”

In Flersheim Mercantile Co. v. Gillespie, 14 Okla. 143, 77 Pac. 183, Judge Irwin said:

“The next asignment of error is that the court erred in refusing to grant to plaintiff a new trial on the ground of newly discovered evidence. It is a well-recognized rule of this court that a new trial on the ground of newly discovered evidence will not be sustained, unless it affirmatively appears from the affidavit in support of such motion -that diligence has been used to discover such testimony, and that the same could not have been discovered at a time prior to the trial by the use of reasonable diligence. In' the affidavit in support of the motion for a new trial in this case, the general statement is made that the plaintiff and its attorneys have used every possible effort to ascertain the names of these witnesses, and the facts whereof they would testify; but it does not appear by the affidavit what these efforts were, or in what manner or how they investigated or made inquiry to ascertain the facts.” .

The above cases present opr view of the law upon this question clearly and^Eully. In this case the affidavit is silent upon the question of dil™ence. It is therefore fatally defective, and the trial court did not err in refusing to grant a new trial upon this ground. An affidavit for a new trial upon the ground of newly discovered evidence must set out the proposed evidence, and it must be such as could not have been secured at the former trial by reasonable diligence on the part of the defendant, which fact .should appear in the affidavit. If possible, it should be accompanied by the affidavit of the newly discovered witnesses.

Third. Appellant seeks to secure a reversal of the judgment in this case upon the ground that one of his witnesses, Tom Guinn, on cross-examination, was asked by the prosecution: “Have you ever been arrested?” To which the witness replied that he had. The prosecution then asked the witness what he had been arrested for. The witness replied that he had been arrested for stealing bois d’are posts, and also for disposing of mortgaged property. These questions were asked and answered over the objections and exceptions of counsel for appellant. Previous to being asked the above questions, the witness had stated that he had never been convicted of any crime.

Prior to statehood, the citizens of the United States living in what then was Indian Territory, had no form of government of their own outside of incorporated towns and cities. They were governed exclusively by the United States courts, under laws put in force in that country by acts of Congress. Chapter 46 of Mansfield’s Digest of the Laws of Arkansas, entitled “Criminal Procedure,” was put in force in Indian Territory by acts of Congress, both by Act May 2, 1890, c. 182, § 33, 26 Stat. 96, and by Act March 1, 1895, c. 145, § 4, 28 Stat. 695. By the former act the provisions of this chapter were qualified by the words, “as far as are applicable”; but, by the latter act named, there was no qualification or exception whatever. Under the head of “General Rules for the Examination of Witnesses” (Indian Territory Statutes [Ann. St. 1899, § 2017; Mansf. Dig. § 2902]), we find the following:

“A witness may be impeached by the party against whom he is produced, by contradictory evidence, by showing that he has made statements different from his present testimony, or by evidence that his general reputation for truth or immorality renders him unworthy of belief, but not by evidence of particular wrongful acts, except that it may be shown, by the examination of a witness, or record of a judgment, that he has been convicted of felony.”

When this provision of law was placed in force in Indian Territory, by act of Congress, it had repeatedly been construed by the Supreme Court of Arkansas, and had a clear and fixed meaning attached to it. The Supreme Court of Arkansas, in construing this statute, in the case of Bates v. State, 60 Ark. 451, 30 S. W. 890, says: “A -witness cannot be impeached nor his testimony impaired by proving that he has been indicted for larceny” —and cites the following cases as showing that this is the settled rule in that state; Holder v. State, 58 Ark. 478, 25 S. W. 279; Carr v. State, 43 Ark. 99; Anderson v. State, 34 Ark. 257.

Section 2051 of the Code of Civil Procedure of California is as follows:

“A witness may be impeached by the party against whom he was called by contradictory evidence or by evidence that his general reputation for truth, honesty, or integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of a felony.”

In construing this section, in People v. Chin Hane, the Supreme Court of that state, on pages 606 and 607, 108 Cal., 41 Pac. 700, says: “In order to impeach the credibility of awitness, including a defendant, when he testifies, the witness may be asked if he has ever been convicted of a felony. * * * Beyond this the examination should not go.”

The Supreme Court of New York, in the case of Van Bok kelen v. Berdell, 130 N. Y. 141, 29 N. E. 254, says: “Whilst a witness may be discredited by showing his conviction for an offense, we do not understand it to be competent to discredit him by showing that he had been indicted.”

In the case of Glover v. United States, 147 Fed. 429, 77 C. C. A. 453, 454, the court says:

“* * * The prosecuting attorney inquired of several witnesses for the defense as to whether they had not been arrested at some time on some charge or other. Although the witnesses answered that they had been arrested for offenses, in instances they had not even been prosecuted, and where prosecuted they had been acquitted, the prosecuting attorney would follow this up, however, with a suggestive query: ‘You have been arrested or accused several times ?’ It is competent for the purpose of discrediting a witness to show that he has been convicted of a crime. The general rule is that the crime must rise to the dignity of a felony or petit larceny. State v. Taylor, 98 Mo. 244, 11 S. W. 570; State v. Kelsoe, 76 Mo. 507; State v. Donnelly, 130 Mo. 651, 32 S. W. 1124; Coble v. State, 31 Ohio St. 100; Glenn v Clore, 42 Ind. 60. Whatever may be the limit in this respect, nothing short of a conviction of a crime is admissible for the purpose of impeachment. A mere accusation or indictment will not be admitted for the reason that innocent men are often arrested charged with a criminal offense. 1 Greenleaf on Evidence (16th Ed.) 461b, 461c, pp. 579, 580. The proper evidence of a conviction of a crime is the record thereof. See Baltimore &Ohio Railroad Company v. Rambo, 59 Fed. 75-80, 8 C. C. A. 6; Bise v. United States, (recently decided by this court) 144 Fed. 374, 74 C. C. A. 1. The practice of proving the former conviction by cross-examination is recognized in many states, usually by statute and occasionally by judicial decisions. 1 Greenleaf on Evidence- (i6tb Ed.) par. 461b, note 8. But where this practice is. recognized, the proper question would be as to whether or not the party being interrogated had been convicted of'a crime, and not whether he had been arrested or indicted.”

We might well rest our decision of this question upon the statute, and authorities above cited; but as counsel for appellee have, in their brief, discussed the general principles involved in this question, and as it is liable to be raised in the trial of many criminal cases, we deem it best to go into the matter fully, so that the trial courts of the state may know what rule of practice will be adhered to'by this court, whether the cases are subject to the statute above 'quoted or not, and thus avoid the reversal of cases in the future upon this question. We have not overlooked, or failed to consider, the cases which announce a doctririe contrary to the views expressed in the authorities above cited. In our judgment these cases are not founded upon justice, or supported b3r reason. It would be a useless consumption of time to take these cases up and discuss them in detail. Precedents should be weighed, and not counted. We will now proceed to give what we believe to be the fundamental principles which should control the introduction -of this class of evidence. The sole purpose of its admission is to effect the credibility of a witness.. There are many crimes the commission of which conclusively proves an utter want of moral character, such as seduction, arson, forgery, perjury, larceny, obtaining money or goods by false pretenses, and similar offenses. They all necessarily impute disgrace and infamy. If a witness has been convicted of any of this class of offenses, it should be known to the jury, so that they may properly weigh his testimony, as indicating a tendency to deceit and falsehood. As witnesses are often called whose past lives are unknown to the party against whom their evidence is offered, it is proper that, on cross-examination, a witness may be asked if he has ever been convicted of a felony, or of any other offense which indicates a'want of'moral character. This may be done solely for the purpose of affecting the credibility of his testimony. Where it is sought to disqualify the witness and exclude his testimony, the record evidence of his convictions must be presented, if obtainable. To this extent there is practically no conflict in the authorities. The line of divergence begins with those cases which go further, and hold that a witness may be asked if he has ever been indicted, arrested, or imprisoned for crime. To this doctrine we cannot give our assent. It is manifestly unjust to expect that a witness can be prepared, without notice, to disprove every accusation of his enemies or alleged act of his life. Even if he could and was permitted to do so, it would require the introduction of testimony relating to collateral matters, and thus needlessly occupy the time of the court, and confuse the real issues in the case in the minds of the jurymen. But these reasons do not apply to the query as to whether a witness has been convicted of a felony, because the witness well knows if this is true, and because the judgment is conclusive and cannot be attacked, and therefore the witness could not use supporting testimony to prove his innocence, even though he might have witnesses in the court for that purpose.

An indictment is nothing more than an accusation of a crime. An arrest is but the reassertion of this accusation. Imprisonment before conviction is only the result of such accusation. They all rest upon the same ground. Both by statutory provisions and by the general principles of the law, every person accused of crime is presumed to be innocent until his guilt is established' in a court of competent jurisdiction, by legal evidence beyond a reasonable doubt. Accusations often rest upon hearsay and suspicion, and are frequently prompted by malice. To allow a witness to be asked if he has been indicted, arrested, or imprisoned for crime before conviction is to place hearsay, suspicion, and malice upon the same footing with, and to give them the same consideration, dignity, and conclusive character as is attached to, the solemn judgments of courts, rendered only after due notice and upon full, fair, and impartial investigation. To this we cannot agree; it matters not how many precedents may be cited to this effect. A multiplicity of errors does not make right that which is predicated upon false premises, and which was therefore wrong in its inception. To permit such questions to be asked is an act of cruel injustice to a witness. It is out of harmony with the philosophy of the law, and can serve no rightful purpose in the administration of justice.

But it is- attempted to justify the admission of this class of evidence upon the ground that it is always permissible to inquire into the antecedents of a witness, by showing his occupation, social connections, manner of living, and such matters. While we approve the principles referred to, we deny its application to the class of evidence now under consideration.' The presumption of law is that every person, to a large extent, has the right and power of selecting his occupation, social connections, and manner of living. Being matters largely of his own choice, they indicate his true character, and he is therefore responsible for them, and they may be inquired into for the purpose of affecting his credibility; but these reasons do not apply to indictments, arrests, or imprisonment before conviction, for the obvious reason that they are not matters of choice, but are involuntary, so far as the witness is concerned. When the reason for a rule of law ceases, the rule should fall with it. There is no rule of law that presumes guilt upon accusation, or on account of an arrest. Imprisonment before-conviction is often evidence of poverty, rather than of criminality. A defendant of wealth can give bond, and, except in rare instances, does do so. The poor defendant is,’ in many cases, imprisoned, pending his trial. To say that such imprisonment raises a presumption of moral turpitude is illogical. It discriminates in favor of the rich and against the poor. It violates the fundamental principle of law that all classes, the rich and the poor, the influential and the humble, stand upon an equality before the courts.

For the reasons above given, we hold that upon cross-examination, for the purpose of affecting the credibility of the witness, he may be asked if he has been convicted_ of a felony, or of any crime which involves a want of moral character; but it is improper to ask such a witness if he has been indicted, arrested, or imprisoned, before conviction, for any offense whatever.

Fourth. Appellant assigns, as error, and complains of the following instruction given by the trial judge: “The possession of property recently stolen is a presumption against the -party having possession, and it requires him to make explanation.” Appellant duly execpted to the above instruction when it was given. The’ effect of this instruction is to inform the jury that the possession of property recently stolen raises a legal presumption of guilt against the party having it in his possession, and that the law requires an explanation from him of such possession. We do not so understand the law. In the case of Oxier v. United States, 1 Ind. T. 91, 38 S. W. 332, Judge Lewis says:

"The later and the sounder and better rule is believed to be that which makes the presumption arising from the possession of recently stolen property not a presumption of law, but of fact; in other words, an inference to be drawn or not, as the jury may determine in the light of all the evidence.”

In the case of Blair v. Territory, 15 Okla. 550, 82 Pac. 653, Judge Buford says:

“While the possession of stolen property does not create a presumption of guilt, it is a circumstance which, if not satisfactorily explained, raises a very strong inference of guilt. This inference, together with the facts and circumstances attending the taking and connected with the possession, are questions for the jury, and may be sufficient to induce an irresistible conclusion of guilt; The circumstances of each particular case must be of necessity different, and while possession of stolen property in one case may not warrant a verdict of guilty, there are other cases where such possession is so related to other circumstances of a criminating character as to*satisfy an unprejudiced mind that the possessor is the thief. Proof of possession alone is not sufficient to sustain the conviction; but where the larceny is proven beyond question, the stolen property found in the possession of the prisoner, and he exercising acts of ownership and control over and claiming it, and the explanation given by him is not a reasonable or satisfactory one, and the conduct and character of the prisoner are such as to arouse suspicion, such facts and circumstances often produce the most satisfactory evidence of guilt and will sustain a conviction.”

We regard this statement by Judge Burford as an admirable expbsition of the law upon this question, and deem a further citation of authorities unnecessary. We therefore hold that any presumption of guilt which may arise from the possession of property recently stolen is not a question of law, but is purely a question of fact, to be found by the jury upon a consideration of the entire evidence before them. The instruction complained oi was upon the weight of the evidence, which is for the determination of the jury, and was therefore error.

Fifth. Appellant assigns, as error, and complains of the following instruction given by the trial court: “If a witness were to go on the stand and swear that the moon was made of green cheese, you would not be compelled to believe that statement.” Appellant reserved an exception to this instruction when given. It is a fundamental principle of the law that the jurors are the judges of the credibility of the witness. During any stage of the trial of a criminal case, it is improper for the judge to let the jury know, or even intimate, what his opinion is as to the credibility of any evidence before them. He should not do this either directly or indirectly; it matters not how absurd and incredible the evidence may appear to him. In this case the appellant offered testimony for the.purpose of explaining,his possession of the stolen property. This evidence does not commend itself to our minds as being credible, and in all probability it was viewed in the same light by the trial judge. The instruction given was calculated to create the impression upon the minds of the jurors that the court regarded the testimony of the defense as being as incredible as the supposed testimony* “that the moon was made of green cheese.” In this there was error.

Reversed and Remanded.

BAKER and DOYLE, Judges, concur.


text:
      Ex parte B. M. Johnson.
    No. A. 20.
    Opinion Filed October 16, 1908.
    (97 Pac. 1023.)
    1. TRIAL — Variance—Discharge of Jury — New Indictment. Where, upon the trial of a case, it appeal's to the court that there is a variance between the allegations of the indictment or information and the testimony introduced, and the jury is discharged upon this ground, and it is the opinion of the court that a new indictment or information can be framed upon which the defendant can be legally convicted, it is the duty of the court to commit the defendant to custody, or to admit him to bail until such new indictment or information can be presented against him.
    2. HABEAS CORPUS — Grounds—Former Jeopardy. The writ of habeas corpus cannot be resorted to for the purpose of discharging ,an applicant on a plea of former jeopardy.
    (Syllabus by the Court.)

      Application of B. M. Johnson for writ of habeas corpus.

    Writ denied.

      P. S. Winn, for petitioner.—
    On the question of former jeopardy: Bell v. State, 44 Ala. 393; Scott v. State, no Ala. 48; People v. Cades, 48 Cal. 323; . Morgan v. State, 13 Ind. 215; Boswell v. State, in Ind. 47; In re McClosky, 2 Okla. 577; Williams v. State, 42 Ark. 35; Lee v. State, 26 Ark. 260; People v. Taylor, 117 Mich. 583; Mixon v. State, 55 Ala. 129.
    On the question of whether habeas corpus is the proper remedy: Neilson, petitioner, 131 U. S. 176; In re Snow, 120 U. S. 274; People v. Stevens, 79 Cal. 428; 31 Kan. 511.

      Charles R. Bostick and W. C. Reeves, Assistant Attorney General, for respondent:—
    On the question of the'court’s power to issue order of commitment: Wilson’s Rev. & Ann. St. 1903, § 5508. Habeas corpus cannot be resorted to for the purpose of discharging defendant on ground of former jeopardy: Miller v. Case, (Kan. App.) 51 Pac. 922; In re Terrell (Kan.) 49 Pac. 458, State v. Klock, (La.) 12 South. 307; Pitner v. State, 44 Tex. 578; Ex parte Crofford, (Tex. Court Crim. App.) 47 S. W. 533; In re Barton, (Utah) 21 Pac. 998; Steiner v. Nerton, (Wash.) 32 Pac. 1063.
   FURMAN, Presiding Judge.

On the 6th day of October, 1908, petitioner,-B. M. Johnson,' was placed upon trial in the district court of Noble county, Okla., upon an information filed against him by the county attorney of said county, wherein the said B. M. Johnson was charged with the offense of obtaining money under false pretenses. The defendant entered a plea of not guilty. A jury was impaneled and .sworn, and the state proceeded to introduce its evidence; but, before the state had concluded its evidence in chief, the county attorney moved to dismiss the cause, and requested that the defendant be held to answer to the charge of obtaining the signature of E. J. Miller to a written instrument designedly and by false represehtations, with intent to cheát and defraud him, the said E. J. Miller. Thereupon the court ordered that said cause be dismissed, and that the said defendant, B. M. Johnson, be remanded into the custody of the sheriff of Noble county, Okla.; and the county attorney was ordered to file, in the county court of Noble county, a complaint against the said B. M. Johnson for the said charge of obtaining the signature of E. J. Miller to a written instrument designedly and by false representations, with intent to cheat and defraud the said E. J. Miller, and that said defendant be proceeded against as directed by law. To all of which rulings and orders the defendant duly excepted.

On the 8th day of October, 1908, the defendant applied to this court for a writ of habeas corpus, alleging that the order of the trial court committing him to the custody of the sheriff of Noble county, pending the filing of a complaint against him, was without authority of law, and that he was entitled to his liberty. In order that this question might be decided and set at rest the writ was issued as prayed for. The presence of the defendant and of the sheriff of Noble county in this court was waived by stipulation of counsel on both sides and the matter was set for hearing on the 13th instant.

In his answer to the writ of habeas corpus the sheriff set up the matters hereinbefore stated, and further stated that on the 9th day of October, 1908, complaint was filed before the county judge of Noble county,_ in which the defendant was charged with having obtained the signature of E. J. Miller to a written instrument designedly and by false representations, with intent to cheat and defraud the said E. J. Miller, and that on said date commitment was issued out of said county court of Noble county commanding said sheriff to hold the defendant upon said charge, to await the further action of the court; that in the 10th day of October the defendant appeared before said judge, and entered his plea of not guilty, and that the bail of said defendant was fixed by said judge in the sum of $500, in default of which the defendant was committed to the custody of said sheriff. It further appears that by agreement of counsel said cause before said judge was set for preliminary hearing on the 15th day of October, 1908, and that the defendant is now in the custody of the sheriff of Noble county awaiting said trial.

It is contended, by counsel for the defendant, that the proceedings, which are now pending before said county judge of Noble county, are for one and the same offense as that upon which he was previously placed upon trial in the district court of said county,' and that this court should order his release upon the ground of former jeopardy. This presents two questions for determination, viz.: First. Did the district couyt of Noble county have the power to make the order committing defendant to custody, peiiding the fifing of a new complaint against him? Second. Can the question of former jeopardy be considered upon a hearing on habeas corpus? We will now consider these questions in order named.

First. Section 5508 of Wilson’s Revised & Annotated Statutes of Oklahoma of 1903 is as follows:

“If the jury be discharged because the facts as charged do not constitute an offense punishable by law, the court must order that the defendant, if in custody, be discharged therefromj or if admitted to bail that the bail be exonerated, or if he have deposited money instead of bail, that the money deposited be refunded to him, unless in its opinion a new indictment can be framed, upon which the defendant can be legally convicted, in which case it may direct that the case be resubmitted to the same or another grand jury.”

From this it is clear that the trial court had the power to direct that the case be resubmitted to the same or another grand jury. The grant of power to do a certain thing necessarily carries with it the power to do all things which are necessary to the full accomplishment of the purpose had in view in granting the original power. To say that the court can direct a resubmission of a case to a subsequent grand jury, but is without power to hold the defendant in custody, or on bail, to answer an indictment which may be found, is to so construe the law as to result in its defeat, and thus render it absurd and abortive. It is a familiar principle of law that a statute must never be so construed as to defeat the plain purpose which it has in view. We, there-fore, hold that it was the duty of the court to direct that the defendant should be held until another prosecution could be instituted. If the defendant requests bail pending the institution of the new prosecution, the court should fix the amount to be given. The evident purpose of section 5508, Wilson’s Rev. & Ann. St. Okla. 1903, was that in the cases therein provided for the defendant might be held until he could be legally proceeded against. To construe this section otherwise would be to place form above substance.

Second. Can the plea of former jeopardy be heard on habeas corpus proceedings? It is an elementary principle of law, of universal acceptance, that mere errors or irregularities,which do not render fhe proceedings void, are not ground for relief by habeas corpus. We have an authority directly in point to the question now under consideration in the case of In re Belt, 159 U. S. 95, 15 Sup. Ct. 987, 40 L. Ed. 88. The petition for the writ set up former jeopardy as the ground upon which the petitioner sought to be released from custody. The Supreme Court says: “The general rule is that the writ of habeas cofpus will not issue unless the court under whose warrant the petitioner is held is without jurisdiction, and that it cannot be used to correct errors.” It then held that.the lower court had jurisdiction, and the writ was denied. In Whitten v. Tomlinson, 160 U. S. 231, 16 Sup. Ct. 297, 40 L. Ed. 406, the writ was sought also upon the ground of former jeopardy. Referring to this plea, the court said: “Whatever effect it might have if pleaded to a subsequent indictment affords no ground for his discharge on habeas corpus.” In the case of Ex parte Crofford, 39 Tex. Cr. R. 547, 47 S. W. 533, the court says: “The decisions have been uniform that the writ of habeas corpus cannot be resorted to for the purpose of discharging an applicant on a plea of former jeopardy.”

We could cite authority without limit to sustain the proposition that a petitioner cannot be discharged on habeas corpus upon the plea of former jeopardy, but do not deem it necessary to do so. The district court of Noble county had jurisdiction of the offense charged and of the prisoner. It has jurisdiction to hear and decide upon the defenses offered 'by him. As to whether the defense now relied upon is good involves questions both of law and of fact. The trial court should pass upon the questions of law. A jury, under the instructions of the trial court, should pass upon the questions of fact involved. As the identity of the two alleged offenses is in question, this must go to the jury.

The relief prayed for cannot be granted.

BAKER and DOYLE, Judges, concur.