text:
    J. S. STEVENSON v. STATE
    No. A-2652.
    Opinion Filed September 23, 1916.
    Appeal from the County Court of Garvin County; W. R. Wallace, Judge.

      J. S. Stevenson, eonvieted of a violation of tlie prohibitory law, appeals.
    Affirmed.
    H.jVX, Carr, for plaintiff in error.
    E. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

On information charging that he did have in his possession intoxicating liquors with intent to sell the same, the plaintiff in error, J. S. Stevenson was tried and eonvieted in the county court of Garvin county and his punishment assessed at confinement in the county jail for thirty days and a fine of one hundred dollars. Prom the judgment rendered on the verdict he appealed by filing in this court on February 19, 1916, a petition in error with case-made. No brief has been filed. When the ease was called on the assignment for final submission no appearance was made on behalf of the plaintiff in error, whereupon the attorney general moved that the judgment be affirmed for failure to prosecute the appeal. A careful examination of the record discloses that the assignments of error are without merit. The judgment herein is therefore affirmed.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    SHERMAN MOCABEE v. STATE
    No. A-2573.
    Opinion Filed September, 1916.
    (159 Pac. 944.)
    1.Evidence reviewed in a prosecution for unlawfully conveying intoxicating liquor and held sufficient to sustain the verdict and judgment of conviction.
    Appeal from the County Court of Canadian County; E. B. Forrest, Judge.
    Sherman Mocabee, convicted of a violation of the prohibitory law, 'appeals.
    Affirmed.
    J.N. Boberson, for plaintiff in error.
    E. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM:

The plaintiffs in error, Sherman Mocabee, Amos Clark and J. Turner, were jointly charged with having unlawfully transported intoxicating liquor from one place in Canadian county to another place in said county,- and upon their trial were found guilty and the punishment of each defendant assessed at a hundred dollars fine and sixty days confinement in the county jail. The plaintiff in error, Sherman Mocabee, alone appeals.

The proof on the part of the prosecution'is that the three defendants while driving along one of the streets of El Eeno in a .spring-wagon loaded with a barrel of beer and two eases of whisky, were arrested - by the sheriff; that the defendant Mocabee was in charge of and driving the team, and he said to the officer, “we haven’t delivered it yet, ’ ’ and also stated that 1 the barrel of beer was his. ’ ’

As a witness in his own behalf he testified that he borrowed the team to haul the beer and whisky for his co-defendants from the express office for them and denied any ownership therein. His co-defendants testified that they owned the beer and whisky and that it was a lawful purchase and was shipped to them from Ft. Worth, Texas.

The only qirestion presented by this appeal is the sufficiency of the evidence to support the verdict.

After a careful examination of tlie evidence in this case, we are not prepared to say that the jury were not wai'ranted in finding the defendants guilty.

The credibility of the witnesses add the weight and value to be given their testimony is a question solely for the jury's determination, and to reverse a judgment on the ground that the verdict is contrary to law and the evidence, this court must find as a matter of law that the evidence is insufficient to warrant the conviction.

The instructions fully and fairly presented the law of the ease and we are unable to find any error in the record. It follows that the judgment must be and the same is hereby affirmed.


text:
    Nos. A-2591, A-2592, A-2593, A-2594, A-2595, A-2596, A-2597, A-2598, A-2699, A-2600, and A-2601.
    Opinion Filed July 11, 1917.
    Ex-Parte C. E. GORDON, MORGAN OFFARD, D. R. GALLAGHER, GEORGE WAGNER, W. WILSON, GEORGE BURTCH, EDWARD HALL, J. REICHENSPERGER, JOHN McDONALD, W. C. McLEAN and C. YAGER.
    Applications for writs of habeas corpus.
    Applications granted and petitioners discharged. •
    J. J. Carney, for petitioners.
    B. D. Shear, Municipal Counsellor, and Charles Selby, Asst. Co. Atty., for respondent.
   PER CURIAM:

On behalf of the above-named petitioners, duly verified petitions for writs of habeas corpus, as filed in the office of the clerk of this Court, were presented to the Presiding Judge on December 14, 1915, and writs were issued and made returnable before the court at 2 o’clock, P. M., on said day. The petitions duly verified by the petitioners are the same, each petitioner alleging that he is illegally restrained of his liberty by the officers of the city of Oklahoma City and by M. C. Binion, sheriff of Oklahoma county, upon the judgment and sentence of the municipal court of said city, entered on the 3rd day of December, 1915, and averring facts showing that his conviction and imprisonment was without due process of law, and praying that a writ of habeas corpus issue; that his said imprisonment may be inquired into, and that he may be restored to his liberty and discharged from further custody. In response to the writs the official to whom they were directed produced the petitioners in open court and filed his answer and return under oath to eaeh of the writs issued and served upon him as follows: Beturn and Answer to the Writ. “Comes now M. C. Binion, sheriff of Oklahoma County, Oklahoma, and in answer to the writ issued by the Hon. Thomas H. Doyle, Presiding Judge of the Criminal Court of Appeals of the State of Oklahoma, commanding him, as sheriff of Oklahoma county, to produce the body of-1_' before this court at the hour of• 2 o’clock P. M., on this 14th day of December, 1915, and to then and there show cause, if any, for his detention of the said named— -, now in his custody, shows to this Honorable Court that said-was heretofore, in the Municipal Court of Oklahoma City, Oklahoma. duly informed against and charged therein with being a vagrant under the ordinances of the City of Oklahoma City and was, in said court and cause, heretofore duly tried and convicted and found guilty of being a vagrant under the said ordinances of said Oklahoma City, and was, by the Judge of said Court, in said cause, fined in the sum of $99.00 and adjudged to serve 90 days in the city jail of Oklahoma City therefor; that thereafter, and on to-wit, the-day of December, 1915, by agreement with the commissioners of said Oklahoma City and the Board of County Commissioners of Oklahoma county, Oklahoma, under the provisions of law authorizing the two said boards to so agTee, was delivered by the said city authorities to the County Commissioners of Oklahoma county and to the undersigned sheriff of said county, for the purpose of working upon the roads of said Oklahoma county, Oklahoma, and said named - is now held by the undersigned sheriff of Oklahoma county, Oklahoma, in pursuance of and by virtue of said agreement between said City Commissioners and the Board of County Commissioners of Oklahoma county, Oklahoma, for the purpose of public road work upon the public highways of Oklahoma county, in execution and satisfaction of said fine and jail sentence, so imposed by the said Municipal Court of Oklahoma City, and that said period of jail sentence and fine are yet in force and existence and the same unsatisfied, and said named party is held for the purpose of paying the sanie by service upon the public highways of said Oklahoma county.

Wherefore, the undersigned prays that the said prayer of the said petitioner for a writ of habeas corpus; may, in all things and respects, be denied, and for such other relief as may be proper under the facts and the law.”

The testimony of the petitioners as witnesses in their own behalf established, or tended to establish, the following facts: That on the 3rd day of December, 1915, they with others were arrested without warrants by police officers of Oklahoma City, and were that day taken before the police judge of said city without any written charge, complaint or information; that their only knowledge of what they were accused of was the statement made by the police judge to the effect that they were each separately charged with being guilty of vagrancy; that each entered a plea of not guilty to said charge; that they were each without counsel, and the said police judge did not inform them or any of them of their right to have counsel before being arraigned, nor did he ask them if they desired the aid of counsel; that when they asked to be heard in their own behalf he told them to hold up their right hands and be sworn; that after they were sworn he asked their names and why and for what purposes they were in Oklahoma City; that without permitting them to be heard further than to answer questions asked by said judge, he pronounced each and all of the petitioners and eleven other prisoners present and separately charged with vagrancy as being guilty as charged and sentenced each person so charged to be confined at hard labor on the roads of Oklahoma county for the term of ninety days and to pay a fine of ninety-nine dollars, and in default of the payment of said fine to be further so confined at hard labor until said fine was satisfied according to law.

Jt further appears as an undisputed fact that the police officers that testified in the twenty or more separate cases that were heard at that time; including the cases against the petitioners, were only sworn as witnesses when the first case was called, and the fact that the petitioners had arrived at Oklahoma City that day on their way to the oil fields was not disputed.

Upon the conclusion of the arguments the decision of the court was announced by the Presiding Judge, who delivered an oral opinion finding that the petitioners were unlawfully restrained of their liberty ,hy the respondent, and that they -were entitled to a discharge from the imprisonment of which they complain. Thereupon writs were allowed and the petitioners discharged.


text:
    STEVE WALTERS v. STATE.
    No. A-2630.
    Opinion Filed September 23, 1916.
    (159 Pac. 921.)
    Appeal from the Superior Court of Pottowatomie County; Leander G. Pitman, Judge.
    Steve Walters, convicted of a violation of the prohibitory law, appeals.
    Affirmed.
    Mark Goode, for plaintiff in Error.
    E. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM:

Plaintiff in error, Steve Walters, was convicted in the superior court of Pottawatomie county on a charge of unlawfully transporting intoxicating liquor, and in accordance with the verdict of the jury was by the judgment of the court, sentenced to be confined in the county jail for thirty days and to pay a fine of Fifty Dollars and all costs.

Prom the judgment he appealed by filing in this court on .January 11, 1916, a petition in error with ease-made.

Prom our examination of the record we find that the charge of the court fairly presented the law of the case, and that the evidence is sufficient to support the verdict. No prejudicial error being apparent, the judgment of the court below is affirmed.


author: PER CURIAM.

text:
    GEORGE SHOEMAKER v. STATE.
    No. A-2615.
    Opinion Filed October 15, 1916.
    (159 Pac. 921.)
    Appeal from the District Court of Nowata county; Hon. W. J. Campbell, Judge.
    George Shoemaker was convicted of violating the prohibitory law and appealed.
    Affirmed.
    H. O. Bland, for plaintiff in error.
    E. McMillan, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

Plaintiff in error, George Shoemaker, was convicted at the October, 1915, term of the Nowata district court, charged with maintaining a place wherein intoxicating liquors were kept and sold, and his punishment fixed at a fine of $300 and imprisonment in the county jail for 'nine months. Judgment was pronounced in the trial court on the third day of November, 1915.

The appeal was filed in this court on December 29, 1915. No briefs have been filed on behalf of the plaintiff in error and when the cause was assigned for oral argument in this court, no appearance was made or argument offered. It appears that the appeal has been abandoned.

The Attorney General, in open court, moved the affirmation of the judgment upon the ground that the appeal had not been prosecuted as by law provided and had been abandoned. The motion is sustained and the judgment affirmed. Mandate ordered forthwith.


text:
    OSCAR COFER v. STATE.
    No. A-2633.
    Opinion Filed September 23, 1916.
    (160 Pac. 1199.)
    Appeal from the Superior Court of Pottawatomie county; Leander G. Pitman, Judge.
    Oscar Cofer, convicted of a violation of the prohibitory law, appeals.
    Affirmed.
    Mark Goode, for plaintiff in error.
    E. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

On information filed in the superior court of Pottawatomie county, charging that Oscar Cofer did unlawfully and feloniously and without authority of law keep and maintain a place located at 7 West Main street, in the city of Shawnee, and known as the Stagg Pool Hall, in which place intoxicating liquors were kept for sale, the plaintiff in error was tried and convicted and his punishment fixed at a fine of fifty dollars and confinement in the county jail for a period of thirty days.

Prom the judgment rendered on the verdict the defendant appealed by filing in this court on January 13, 1916, a petition in error with case-made. -

No brief has been filed and when the ease was called on the assignment for final submission no appearance was made in behalf of plaintiff in error.

Upon a careful examination of the record it appears that the evidence is sufficient to support the verdict and the charge of the court fully and fairly presented the law of the case. No error being apparent, the judgment of the court below is affirmed.


author: DOYLE, P. J.

text:
    CLAUDE KEITH v. STATE.
    No. A-2685.
    Opinion Filed January 24, 1917.
    (162 Pac. 239.)
    EVIDENCE — Other Offenses. On a trial for unlawfully selling intoxicating liquor, evidence thait the defendant on the same day,- at .the same plaice, made sales other -than the one charged, to the same party, is admissible as tending to connect the defendant with the commission of the offense charged.

      Appeal from, County Court, Garvin County; W. R. Wallace, Judge.

    Claude Keith was convicted of violating the prohibitory law, and he appeals.
    Affirmed.

      H. M. Carr, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State
   DOYLE, P. J.

Plaintiff in error was convicted in the county court of Garvin county upon an indictment presented by a grand jury in the district court, which was duly transferred from the district court - to said county court, wherein the defendant, Claude Keith, was charged with having unlawfully sold to one Alfred Davis intoxicating liquor, and his punishment assessed at confinement in the county jail for one hundred and eighty days and a fine of $500. He has appealed from the judgment entered upon such conviction.

The only evidence introduced was that of C. F. Long-acre, who testified that he conducted a repair shop in Pauls Valley about a block from the courthouse, and that on the day in question the defendant, Claude Keith, sold and delivered a bottle of alcohol to Alfred Davis in his shop; that he saw the bottle delivered, and saw Davis pay defendant 75 cents for it. He further testified as follows:

Q. How many transactions did they have there in your store that day? (Objected to by defendant as being incompetent and irrelevant, he is charged with this specific sale). By the Court: Objection overruled if it is to the . same party. (The defendant excepts and exceptions are allowed.)”

This ruling of the court presents the only question which we deem worthy of notice. In our opinion, this evidence was competent. It was on the same day and between the same parties, at the same place, and it showed a series of transactions of similar nature to the one charged. In any event the evidence was merely cumulative, and the guilt of the defendant was so conclusively established that the reception of this evidence, even if incompetent, would not require a reversal of the conviction. We find nothing in the record of which the defendant has any just complaint.

It follows that the judgment appealed from should be, and the same is hereby, affirmed.

ARMSTRONG and BRETT, JJ., concur.


author: BRETT, J.

text:
    JIM WILEY v. STATE.
    No. A-2394.
    Opinion Filed December 4, 1916.
    (161 Pac. 61.)
    HOMICIDE — Trial—Instructions—Self-Defense. Where the only eyewitness to- a homicide testified that the deceased attempted to bribe the accused to swear falsely, and the accused resented the offer by using very violent and insulting language tovyar(3-the deceased, and that .the deceased thereupon became enraged and attacked the accused with an open knife, and the accused then shot the deceased in defense of his person, and where the evidence showed no previous hostility, but, on the contrary, that prior to the fatal difficulty the men had been friends, held, that it was prejudicial error for the court to instruct the jury, under this state of facts, to the effect that, if the accused addressed the insulting language towards the deceased for the purpose of provoking a difficulty, and doing the deceased bodily harm, he thereby forfeited his right of self-defense, for the reason that the accused had the right to resent this offer to bribe him, and to resent it in no uncertain language, and this instruction suggests a purpose on 'the part of the accused for using the insulting language which is neither sug-ested by nor borne out by the evidence, and in effect denies to the accused the plea and right of self-defense which 'the evidence on behalf of .the accused tended to establish.

      Error from District Court, Pontotoc County; Tom D. McKeown, Judge.

    Jim Wiley was convicted of manslaughter in the first degree, and brings error.
    Reversed and remanded.

      Crawford & Bolen and W. N. Maben, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

Plaintiff in error in this case, who will be referred to as defendant, was charged with murder in the district court of Pontotoc county, and was convicted of manslaughter in the-first degree, and sentenced to 12 years in the penitentiary.

There was no one present at the time of the fatal difficulty except the defendant and the deceased. The defendant’s plea was self-defense; arid in this he is not contradicted by the circumstances, and the state failed to show any hostility between the men prior to the difficulty which resulted in the homicide. In fact, the widow of the deceased testified that they were friends, and she knew of no differences between them.

The defendant was a tenant on the farm of the deceased, and had, only a short while before the homicide, made a deal with the- deceased to cultivate the farm for another year. But a few days prior to the homicide defendant found a notice on his front gate warning him to settle up his affairs and leave the community within ten days.' Defendant testifies: That, feeling unsafe, because of this notice, he borrowed a Winchester rifle from the deceased, and also purchased a pistol, to defend himself against any violence that might be offered by the party or parties who were the authors of this unfriendly and threatening notice. That he kept the Winchester at the house, but carried the pistol with him wherever he went. That he had consulted with the deceased as to how he should treat the warning, and had decided to forfeit the contract for another year and leave the community. The deceased had made him an offer to buy his crop, but he thought the consideration was riot enough and did not accept it. His oats had been threshed, and after defendant determined to leave he sold the oats to the merchant who had furnished him with groceries during the past year in settlement of what he owed said merchant. That on the day of the homicide deceased came to his house and told him he wanted to talk to him privately, and suggested that they withdraw to a private spot near the house. That when they reached this place the deceased told him that a lady by the name of Ham-mersley had gone to Ada that day, and filed a suit against him for slander, and said to the defendant, “I need youi; help,” to which the defendant replied, “All right,” and asked deceased, “What do you want me-to do?” Deceased replied, “I want you tp swear that I have always spoken of that woman in the highest terms to you.” Defendant replied that he could not do that. ' Deceased said, “Wiley, if you will, I will make you a different man.” Defendant asked him what he meant by that, to which the deceased replied, “I will give you $50 if you swear that.” . Defendant testified: That he became angry at this attempt to bribe him to swear falsely, and resented it by using some very violent and abusive language toward the deceased, which we will not here repeat. That deceased became furious and began to shake with rage, and called the defendant some vile names, and struck at him overhanded with a knife. That he, the defendant, jumped back and drew his pistol and began to shoot, and shot as rapidly as he could, until he emptied his revolver. • That deceased made two lunges at him with the knife after he began shooting; that about the time he fired the last shot deceased staggered backward and fell. That he, the defendant, then turned and went to the house, and summoned the neighbors, and went to the nearest peace officer and surrendered.

There was, at the time the neighbors first saw the defendant and at the time he surrendered, a cut place on the shoulder and arm of his jumper. The deceased was left-handed, and near his left hand was an open knife, which his widow identified as the knife of her husband, and one of the state’s witnesses, who lived only about 250 yards from the scene of the homicide, and was one of the first to arrive upon the ground, stated there were signs on the ground that indicated that there had been a tussle. Witnesses for the state testified that the shots were fired in very rapid succession. The records of the district court show that the lady, Hammersley, had on the very day of the homicide commenced an action against the deceased for slander. Dobson and other witnesses for the state say that the defendant told them immediately after the killing that he and the deceased had a difficulty which grew out of the Hammersley case, and he killed deceased to prevent his cutting him with a knife, which is a circumstance which corroborates the defendant’s story; for it is hardly probable that he would have known anything about the Hammersley case having been commenced if he had not been told about it by the deceased, since the lady had gone to Ada and filed the case that very day. For while it is reasonable, under the facts disclosed by the evidence, to suppose that the deceased was expecting this action to be filed, and consequently watching every movement of this woman, ye^ there is nothing in the evidence to indicate that the defendant had any interest in the matter, or would have known of the action being commenced, unless told about it by the deceased. There is considerable vague evidence on the behalf of the state which might have been, under the explanation of counsel, of value to the jury, but which on the cold face of the record throws but little, if any, light upon the motive or the circumstances of this homicide.

The defendant complains, among other things,- ■ of some instructions given by the court; the first complained of being No. 6. While we think, under the facts in this case, this instruction is both erroneous and prejudicial, yet no exception was taken to it, nor did the defendant call the court’s attention to the error by offering a correct instruction. Hence we cannot consider the error complained of.

But instruction No. 13 was duly excepted to, and we think, under the facts in this case, was erroneous, and highly prejudicial to the substantial rights of the defendant. In this instruction the court .tells the jury:

“That insulting words are not sufficient in law to justify an assault, but if a person address insulting words to another with a purpose and intent to provoke a difficulty, and with the intent to kill, or to do serious bodily injury to the person insulted, then he cannot plead the law of self-defense, unless he voluntarily abandons the combat prior to the killing, and by words or acts notify his adversary of his intention to withdraw therefrom. So in this case, if you believe from the evidence beyond a reasonable doubt that the defendant, Jim Wiley, addressed insulting words to the deceased, J. N. Ross, with the intent and purpose to provoke said J. N. Ross into a fight and cause the said J. N. Ross to make an unlawful assault upon , him, with the intent and purpose of the said Jim Wiley to kill said J. N. Ross or to do him serious bodily injury, then the defendant, Jim Wiley, cannot invoke the right of self-defense.” ■

Under the evidence in this case, the insulting language used by the defendant towards the deceased was in resentment of the offer of the deceased to bribe the defendant to swear falsely. Prior to this time the evidence shows that they had been friends. The deceased came to the defendant as a friend, to get him to assist him in this slander suit; and the defendant indicated his willingness to render whatever assistance he could. But,. when deceased revealed the fact that' his mission and purpose was to induce the defendant to swear falsely, it was both the right and the duty of the defendant to resent his offer, and to resent it in no uncertain language. And under this state of facts it was highly prejudicial to the rights of the defendant to inject the implication contained in this instruction that the defendant might have addressed the insulting words toward the deceased for the purpose of provoicng a difficulty with the intent to kill the deceased or do him serious bodily injury. The dqctrine announced in this instruction as an abstract proposition of law is correct, and under certain conditions would be a proper instruction, but has no application to- the facts in this case and suggests a purpose on the part of the defendant for using this insulting language towards the deceased which is not suggested anywhere i by the evidence. And this unwarranted suggestion and instruction in effect denies to the defendant the plea and right of self-defense, which his evidence tended to establish, and entitles him to a new trial.

There are some other matters complained of which, if error, will not likely recur in a retrial of the cáse; and, as the judgment must be reversed by reason of the error contained in this instruction, we deem it unnecessary to pursue the matter further.

The judgmént is reversed, and the cause, remanded.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
      Ex parte ARTHUR ROWE.
    No. A-2847.
    Opinion Filed December 12, 1916.
    (161 Pac. 331.)
    BAIL — Admission to Bail — Right to. Where a defendant in a criminal action says he' was met by a certain named person a week before the offense was committed, and told by this person to meet him at a stated time and place, and then and there join hini| in the commission of a terime, and that this person threatened to kill him if he did not comply with this demand, and that he did comply with .the demand to save his life, and through fear and intimidation; held, that such contention is absurd, that during the time which elapsed between the date of the alleged conversation and the commission of the crime the defendant had the full and free exercise of his will, and that what he did under this state of facts was his own voluntary act.

      Ex parte application by Arthur Rowe for habeas corpus to compel admission to bail.
    Writ denied.

      McNeill .& McNeill, for petitioner.

      R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

A complaint was filed in the county court of Pawnee county charging Arthur Rowe, the petitioner herein, with murder, and at a preliminary .'hearing before the county judge, as examining .magistrate, said petitioner was held on. said charge without bail,..;to await the action of .the district court. And by habeas corpus proceedings the petitioner seeks to have this court admit him to bail. ..

It is insisted that the corpus delicti was not properly established, and that the evidence is insufficient to hold the petitioner to answer for any crime. .But w.e cannot agree with either of these contentions.

To establish the corpus delicti in this case, it was only necessary to prove that the body of the deceased was found with marks of violence upon it, or other circumstances that indicated that he came to his death by violent or unnatural means. And at the preliminary hearing it was shown that deceased was dead and buried, and that he came to his death by a gunshot wound inflicted in the back of the head. This evidence unquestionably established the corpus delicti; and the petitioner’s own voluntary confession certainly justified the county judge, as examining magistrate, in holding him without bail. It is true that the petitioner claims that one Joe Hobson coerced and compelled him to assist in the commission of this murder. But his own statement refutes any such contention, for he claims that Hobson came to him about a week before the murder was committed and told him that if he did not assist him in the commission of this crime he would kill him; and at the same time told petitioner when and where to meet him, and that at a stated time he would be at a certain point near the deceased’s house, and would fire a shot about 8 o’clock to indicate to the petitioner his exact whereabouts, and that petitioner could then come to him. If this be true, it does not even bear the semblance of coercion, for there was a whole week that the petitioner and Hobson were separated, and the petitioner had the full and free exercise of his will during all that time; and according to this statement he went voluntarily to the spot designated by Hobson' as the meeting place, waited for the shot to be* fired, and then, by the assistance of this signal, voluntarily joined Hobson in the commission of this crime.

But we feel that in justice to Joe Hobson we should say that it has come to the attention of this court that he was arrested and brought to Oklahoma, charged with the commission of this murder; that at an examining trial he proved by his neighbors in Kansas that he was a man of good character and unsullied reputation; and further proved that he was miles from the scene of the crime at the time the Crime was committed, and had been there at all times for weeks both prior and subsequent lu the date of the murder; and, further, that the petitioner in this case refused to take the stand against him at this examining trial, and he was discharged by the examining magistrate.

We have no hesitancy in saying the district judge to whom application for bail was made, before coming to this court, was fully justified in denying petitioner bail.

The writ is therefore denied.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    MINNIE ABRAMS v. STATE.
    No. A-2640.
    Opinion Filed December 15, 1916.

    (161 Pac. 331.)
    1- PROSTITUTION — Pandering — Information. An infoaunation charring a person with, the crime of pandering which only pleads the general terms of the statute, and alleges 'that the accused “did by promise and device and scheme persuade and encourage” a female named to become an inmate of a house of prostitution, is insufficient, when properly challenged by demurrer, for the reason that it is impossible for the accused, under the information, to know what kind of promise the state intends to prove, whether a promise of employment or remuneration, gift or forbearance, or which one of the almost innumerable and inconceivable devices and schemes named in the statute the state intends to rely upon, and ignores the constitutional and statutory safeguard and guaranty that an indictment or information must contain a statement of the acts constituting the órense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.
    2. SAME — Nature of Offense. The gist of the offense of pandering is not that a woman is in a house of prostitution, but that she has been procured or induced by some of the means named in the statute tt'o enter or remain in a house of prostitution. Hence a state of facts must be pleaded .that will show that the person charged did in reality, by some one or more of rtSbte means named in the statute, procure or induce ’the female to enter or remain in such house.
    3. INDICTMENT AND INFORMATION — Presumption of Innocence. Since every person is presumed to be innocent until proved guilty, it logically follows that he must be presumed also to be ignorant of what is intended tp be proved against him, except as he is informed by the indictment or information.
    4. SAMÉ — Sufficiency—Language of Statute. Where words or terms used in the statute have no technical or precise meaning which of themselves imply or define the offense, then the indictment or information must set forth the particular things or acts charged to have been done with reasonable certainty and distinctness.
    5. SAME. — Nature of Offense — Cei’tainty. It is not a technical, but a sound and fundamental rule of criminal procedure that the accused'must be apprised aB the outset by the indictment or information with reasonable certainty of the nature and cause of the accusation against him.

      Error from District Court, Comanche County; Cham Jones, Judge. ,

    Minnie .Abrams was convicted of violating the pandering statute, and she brings error.
    Reversed.

      J. F. Thomas, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

The plaintiff in error in this cáse, Minnie Abrams, who will be referred to as defendant, was charged jointly with her husband, George Abrams, with violating our statute on pandering. A severance was had, and the defendant, Minnie Abrams, was tried, convicted, and sentenced to two years in the penitentiary and to pay a fine of $500, and from this judgment and sentence she appeals to this court.

The appeal is by transcript, and the complaint urged is the insufficiency of the information, which objection was properly raised by demurrer and motion in arrest of judgment. And it is our judgment that this complaint is well taken.

The charging part of the information is that:

“* * * * On the 5th day of August, 1915, George Abrams and Minnie Abrams, then and there being, did then and there willfully, unlawfully, and feloniously procure a female, to wit, Rose Stanfield, to become an inmate of a house of ill fame, to wit, a place where prostitution was encouraged and allowed in the said State of Oklahoma, to wit, at the rooming house of the said defendants, George Abrams and Minnie Abrams, at No. 317 E avenue, in the city of Lawton, Comanche .county, Okla., and did by promise and device and scheme persuade and encourage the said Rose Stanfield to become an inmate of said house of prostitution contrary to the form of the statute in such case made and provided and against the peace and dignity of the state.”

The state insists that the information uses the very language of the statute in charging the offense, and that that is sufficient to make the information good. In reply to this we will say that there are many cases in' which an information or indictment drawn in the language of the statute is good, but there are also many other cases in which this is not true. Hence it is a general rule, and the statutory rule in this state, that the particular circumstances of the offense, and the acts constituting it, must be charged, when they are necessary to constitute a complete offense, or to inform the court, or person charged, as to what is intended.

The gist of this offense is not that a woman is in a house of prostitution, but that she has been procured or induced by some of the means named in the statute to enter or remain in a house of prostitution. Hence a state of facts must be pleaded that will show that the person charged did, in reality, by some one or more of the means named in the statute, procure or induce the female to enter or remain in such house. There might be a promise made to a female which would be so insignificant and trivial that it ^ would appear upon its very face that it was not the inducement or procuring cause of her entering or remaining in such house of prostitution, but that she, in fact, entered or remained in such house of prostitution of her own volition, and not by reason of such trifling and trivial promise, which the court could see at once was too insignificant to influence the conduct of any human being.

Besides, since every person is presumed to be innocent until proved guilty, it logically .follows that he must be presumed also to be ignorant of what is intended to be proved against him, except as he is informed by the indictment or information. People v. Marion, 28 Mich. 255; State v. McKenna, 24 Utah, 317, 67 Pac. 815. Hence it has been well said that:

“Where * * * the words or terms used in the statute have no technical or precise meaning, which of themselves imply the offense, or where the particular facts or acts which shall constitute it are not specified, but, from .the general language used, many things may be done which may constitute an offense, it is then necessary, in charging an offense claimed to be embraced within the general language of the statute, to set forth the particular things or acts charged to have been done, with reasonable certainty and distinctness, so that the court may determine whether an offense within the statute is charged, or one over which it has jurisdiction, and so that the defendant may be advised of the particular nature of it, in order to defend against it, and to plead in bar a judgment of conviction or acquittal thereof, if subsequently prosecuted.” (People v. Perales, 141 Cal. 581, 75 Pac. 170.)

Utah has a statute very similar to ours bn the subject of pandering, and in State v. Topham, 41 Utah, 89, 123 Pac. 888, in passing upon an indictment very similar to the information under consideration, the Supreme Court of that state, in a very able and elaborate opinion, held that the mere language of the statute was too general and indefinite, and was not sufficient to inform the defendant of the particular acts or conduct complained of, and said:

“Should one assert to another that he had a ‘device or scheme’ to accomplish a particular result, would that ‘in ordinary and concise language enable a person of ordinary understanding to know what was intended’ or meant? To enable such a person to know what was intended, would not the first question necessarily be, ‘What is the device or scheme?’
“When the defendant was charged that she had ‘by divers devices and schemes’ accomplished a particular result, who but the pleader knew what was intended or expected to be proved against her in such respect? Or, if it should be claimed that she by ‘threats’ had accomplished such result, again, who but the pleader could know with reasonable certainty what menacing act or conduct of hurt, or fear, or threatening menace to inflict pain or punishment or injury to person, reputation, or property, or to restrain freedom of action, was intended or expected to be proved? Should one complain of another that he ‘threatened’ him, would not again the first question necessarily be, in order to ‘enable a person of common understanding to know’ what was meant or intended, ‘What did he say or do?’ And, if it should be claimed that the defendant by ‘promises’ had accomplished such result, again, could any one but the pleader know with reasonable certainty just what particular acts or conduct in that regard was intended or expected to be proved? This information may be looked at with the utmost liberality, and yet what facts or circumstances or acts are there set forth from which the court may determine whether a promise or promises in law were made by the defendant, if it should be claimed that she, by such means, accomplished the charged result, or a threat made or device or scheme used or employed, if by either of these it be claimed the defendant accomplished such result? Neither she nor any one else except the pleader could know whether he intended to prove some kind of a promise or a threat or a device or scheme. Under the information, if it is. good, the state would be permitted to prove anything which the prosecution thought- tended to show a promise, anything a threat, anything a device, anything a scheme, and no objection to the offer of any such evidence could properly be made by the defendant. If that be true, then the state might as well, be permitted in an information to generally charge the defendant ‘with having committed the offense of pandering’ and be allowed to, prove anything tending to show the commission of such an offense.
“Under this* information neither the court nor the defendant, until the evidence was adduced, could know what particular acts or conduct would be claimed had' been committed by the defendant, and until then the court could not know whether an offense had been charged, nor the defendant' what she was called upon to meet and answer.. * * * ' ■ Should one either in a civil or' criminal pleading charge another at a specified, time and place ‘with having cheated and defrauded’ him, without alleging the acts, the conduct, the facts constitúting the cheat or fraud, certainly no one would contend that to be a sufficient pleading to withstand a demurrer. What more has been done here? The pleader has stated his conclusion that the defendant has said or done something, that she has been guilty o.f some kind of conduct or committed acts of some kind, which in his opinion ■ amount to a promise or a threat or a device or a scheme, but has withheld from the court and the defendant a statement of any acts committed, or things said or done, by her, or any facts or circumstances from which it may be determined whether in law a promise or threat was made, or a device or scheme used or employed, by her. The acts and conduct of the defendant, and the facts and circumstances constituting the promise, the threat, the device, the scheme, were required to be alleged in the information, so that the court could judge whether the accused should have been put upon trial, and that she might then know what she was to defend against.”

In the case at bar it was impossible for the defendant, under the information, to know what kind of promise the state intended to prove, whether a “promise of employment or remuneration, investment, gift, forbearance, or to do or not to do one or more of almost innumerable and inconceivable, things”; for no one could know from the information until the evidence was in what character of promise the state did intend to prove, nor which one of the alrhost innumerable and inconceivable devices or schemes named in the statute the state intended to rely upon. And we hold with State v. Topham, supra, that:

“It is not a technical, but a sound and fundamental rule in the law of criminal procedure that the accused be apprised, not by the evidence adduced, but at the outset, by the indictment or information, with reasonable certainty, of the exact nature of the accusation against him. This rule cannot be bent to meet exigencies of a particular-case, nor the class or grade of the person accused. The-Constitution and the statute prescribe the rules by which the sufficiency of an information may be determined, and they apply to all alike. They do not prescribe one rule for a keeper or director of a house, of prostitution and another for a nun, nor one rule for one offense and another for another offense.”

Hence we' think in the case at bar the information fails to comply with the constitutional guaranty and the statutory safeguard that:

“An indictment or information must contain: * * * A statement of * * * acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.” (Section 5738, Rev. Laws 1910.)

The judgment is therefore reversed, and the cause remanded, with directions to the trial court to sustain the demurrer to the information. And the warden of the penitentiary at McAlester is directed to surrender the plaintiff in error to the sheriff of Comanche county, who shall hold her in custody subject to the further orders of the district court of said county.

DOYLE, P. J., and ARMSTRONG, J., concur.


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    HARRY E. CASTEEL et al. v. STATE.
    No. A-2697.
    Opinion Filed December 15, 1916.
    (161 Pac. 330.)
    1. RIOT — Unlawful Assembly — Information—Sufficiency. An information alleging that three persons named “did unlawfully and willfulljy use force and violence upon the person of T. L. H., while the said persons (naming them) were then and there assembled and had so assembled prior to said acts of force and violence,” is insufficient to charge either the offense of riot, rout, or unlawful assembly as defined in Penal Code (sections 2558-2561, Rev. Laws 1910).
    2. SAME — Offenses—Nature of Offense. To constitute the offense of riot, there must be, not only a common intent on the part of three or more persons, acting together, to do an unlawful act •by use of force or violence or by 'threat’s to use force or violence, accompanied by immediate power of execution, but also concert of action in furtherance of such intent.

      Appeal from County Court, Beaver County; John A. Spohn, Judge.

    Charles E. Casteel, Mary R. Harris, and Harry B. Wright were convicted of riot, and they appeal.
    Reversed.

      Dickson & Dickson and Loofbouvrow & Rizley, for plaintiffs in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiffs in error, Charles E. Casteel, Mary R. Harris, and Harry B. Wright, were jointly charged, tried, and convicted in the county court of Beaver county of a riot under section 2558, Rev. Laws 1910, which reads as follows:

“Any use of force or violence, or any threat to use force or violence if accompanied by immediate power of execution, by three or more persons acting together and without authority of law, is riot.”

From the judgment entered in pursuance of the verdict they appealed by filing in this court on March 28, 1916, petition in error with case-made.

The errors assigned are, in effect, that -the court erred in overruling the demurrer to the information, and that the verdi,ct and judgment are. contrary to law and to-the evidence.

The charging part of the information is as follows:

“That Charles E. Casteel, -Mary-R. Harris, and Harry B. Wright late of the county aforesaid, on the 18th day of April, A. D. 1914, .in the county of Beaver and the-State of Oklahoma aforesaid, did unlawfully and willfully use force and violence upon the person of Thomas. L. Howe while the said Charles E. Casteel, Mary R. Harris, and Harry-B. Wright were then and there assembled and had so assembled prior to said acts of force and violence, contrary to,” etc.

In answer to plaintiffs in error’s brief, the Attorney General has filed a confession of error in part as follows:

“We do not deem this a sufficient information in a case of riot. See section 2558, Rev. Laws 1910; May on Criminal Laws, pars. 165, 166; Wharton on Criminal Law, par. 153; Clark on Criminal Law, par. 152; McLain on Criminal Law, 992; Bishop on Criminal Law, 1143; Chitty on Criminal Law, 488. In all the informations the words, ‘riotously,’ ‘tumultuously,’ or words of similar kind are necessary in the accusation that the community of purpose may be shown. See Chitty, 488; McLain, 999; Wharton, 1862; Pleading and Practice, 18-1200; Bishop Proc. 992; Enc. of Forms, 18057. See, also, Proctor v. State, 5 Okla. Cr. 553, 115 Pac. 630; Cochran v. State, 4 Okla. Cr. 383, 111 Pac. 974. The language of the statute is. not enough; all the elements of the offense must be: charged. Porter v. State, 4 Okla. Cr. 654, 111 Pac. 1023; Simpson v. State, 5 Okla. Cr. 57, 113 Pac. 549. We think the demurrer to the information should have been sustained.”

We aré of the opinion that the information, to have been sufficient to charge a' riot, should have alleged that the defendants (naming them) did unlawfully assemble with the common intent to use force and violence against the person of another (naming him), and then and there, in furtherance of such unlawful intent, and acting together willfully, unlawfully, and riotously, used force and violence against the person named; nor is it sufficient to charge a rout or an unlawful assembly as defined in our Penal Code. Sections 2560, 2561, Rev. Laws 1910. See 3 Bishop’s Crim. Proc. section 992.

In Proctor v. State, 5 Okla. Cr. 553, 115 Pac. 630, it is said:

“To constitute the offense of riot, there must be, not only a common intent on the part of three or more persons, acting together to do an- unlawful act by use of force or violence, or by threats to use force or violence, accompanied by immediate power of execution, but also concert of action in furtherance of such intent.”

Says Bishop:

“Though, in law, people lawfully together may commit riot, still the assemblage must first become unlawful; that is, the riotous purpose, must be entertained. Hence the unlawfulness of the assemblage must in some way appear in allegation.” (3 Bishop, New Crim. Proc; section 995.)

The information filed in this case is fatally defective in that it fails to allege facts showing either an unlawful assemblage, its purpose, or a lawful assemblage and a subsequent agreement of the persons so assembled to commit the unlawful act. It follows that the judgment appealed from should be reversed.

The judgment of the county court of Beaver county is hereby reversed, and the cause remanded, with directions to proceed in accordance with the views herein expressed.

ARMSTRONG and BRETT, JJ., concur.


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    EARNEST COOPER v. STATE.
    No. A-2604.
    Opinion Filed December 16, 1916.
    (161 Pac. 1199.)

      Appeal from County Court, Noble County; A. Duff Tillery, Judge.

    Earnest Cooper was convicted of contempt; and appealed, pending which he was enlarged on bail and filed petition for mandamus, pending which he moved to dismiss his appeal.
    Dismissed.

      P. W. Cress, for plaintiff in error.

      R. •McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The appeal in this case was taken from the judgment of the county court of Noble county, wherein the plaintiff in error, Earnest Cooper, was adjudged guilty of direct contempt of court, and was sentenced to be, confined in the county jail for a period of 30 days, and further committed for 51 days, in addition to' the 30 days, in case said fine and costs are not paid. The judgment was entered December 7, 1915. Super-sedeas was refused, and plaintiff in error was committed. On December 20, 1915, there was filed in this court a petition in error, with case-made, with application to admit plaintiff in error to bail, which application was allowed, and plaintiff in error was enlarged on bail. Later a petition for mandamus was filed in the case, averring that a part of the proceedings in the trial court, including the motion to vacate the order and judgment in the case and a motion for new trial, .had been stricken from the files, and praying that an alternative writ of mandamus be issued by' this court, directed to and commanding said judge of the county court of Noble county to supply the record, or to show cause why said order should not be complied with, and praying that upon the hearing thereof a peremptory writ of mandamus issue. An answer or return to the alternative writ was filed in this court by the respondent. Pending the determination of the mandamus proceedings, the plaintiff in error has filed in this court his motion to dismiss his appeal herein. The’ motion to dismiss the appeal is sustained. Appeal dismissed.


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    GEORGE ABRAMS v. STATE.
    No. A-2757.
    Opinion Filed December 20, 1916.
    (161 Pac. 1198.)

      Error from District Court, Comanche County; Cham Jones, Judge.

    George Abrams was convicted of violating the pandering statute, and appeals.
    Reversed.

      J. F. Thomas, for' plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the. State.
   BRETT, J.

The facts in this, case are identical with those in No. A-2640, Minnie Abrams v. State, ante, p. 11, 161 Pac. 331. The plaintiff in error in this case was charged jointly with Minnie Abrams, his wife, with the offense of pandering. A severance was had, and they were tried separately, but on the same information. Heneé the errors that are pointed out in the case of Minnie Abrams v. State, swpra, as reasons for reversing that case exist in this; and we deem it unnecessary to here restate what is there said, but adopt the reasoning and holdings in that cáse as decisive of this. And the judgment in this case is therefore reversed, and the cause remanded, with directions to the trial court to sustain the demurrer to the information, and the warden of the penitentiary at McAlester is directed to surrender the plaintiff in error to the sheriff of Comanche county, who shall hold him in custody subject to the further orders of the district court of said county.

DOYLE, P. J., and ARMSTRONG, J., concur.


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    STATE v. WALTER CURLEY.
    No. A-2190.
    Opinion Filed December 27, 1916.
    (161 Pac. 831.)
    1. FORGER'S — Information—Sufficiency—Variance; Where an information charged that the defendant uittered, and passed a forged check, but did not plead the names of the indorsers on the back of the check, held, that it was error for the trial court to hold that the information was defectiye because it did not plead the names indorsed on the back of 'the check. This was error, for the reason that these names did not constátate any. essential of the crime charged. Also held that, when this check was introduced in evidence, it was error for .the court to hold that, because the names indorsed on the back of iit were not pleaded in the information, there was a fatal variance between itttxe proof and the allegations of the information. This was error because the crime charged was that the forged check had been uttered and passed, and the only function that the names of the indorsers on the back of the check performed was to furnish evidence as to 'the identity of the parties who uttered and passed the check.
    2. APPEAL AND ERROR — Decisions Revievvable — Grant of New Trial. The state is not allowed to appeal from an order of the trial court granting the defendant in a 'Criminal action a new trial. The granting of a new ‘trial in such cases is largely a matter of sound judicial discretion, and usually involves questions of both law and fact; and when such discretion has been exercised in favor of the defendant it is very much like the verdict of a jury in his favor, and the state should have no right to appeal from it, unless such right is unquestionably given by the statute.

      Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge.

    Walter Curley was convicted of forgery, and from an order granting a new trial, the State appeals.
    Remanded for new trial.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

In this case Walter Curley, the defendant in error, who was also defendant below, was tried in the district court of Pottawatomie county and convicted of the crime of uttering and passing a forged check. A motion ' for a new trial was filed by the defendant, Curley, and sustained by the court, as stated in the judgment and order setting aside the verdict and granting a new trial:

“Because there was a variance between the proof and the pleadings, in this: the information purported to and did set out a true and correct copy of the purported check which was alleged to have been uttered and passed, but did not allege and set up the indorsements on the back of said check or the two names which appeared on the back thereof, to wit, ‘Walter Curley/ ‘John Bertrand/ and a photograph of the purported check was admitted in evidence, both of the face and the back of the check, which showed the two names above mentioned in the order in which they appear above, to be and appear on the back of said check. For which reason the court holds that the check offered and admitted in evidence was not the check which was described in the information. For which said above reasons the verdict of the jury heretofore rendered in this case is set aside, and the defendant granted a new trial.”

To this ruling and order of the court the state excepted, and appeals to this court.

One question involved in this ruling and order goes to the sufficiency of the information, and this may, upon appeal by the state, be reviewed. Section 5990, Rev. Laws 1910.

The face of the check charged to have been uttered and passed is the following:

“TECUMSEH, Okla., 2-22, 1913. No. 33.
“Farmers’ National Bank:
“Pay to the order of Walter Curley $65.60, sixty-five dollars & sixty cents dollars.
“T. G. Cutlip.”

On the back of the check two names were indorsed, that of the defendant Walter Curley, and one John Bertrand.

The evidence shows that Walter Curley and John Bertrand came together to the State National Bank Building in Shawnee, but on reaching the building Walter Curley remained on the outside and John Bertrand entered the building, cashed the check, returned to where Curley was waiting, and handed him a portion of the money he had received. There was no evidence or allegation that either the name of Walter Curley or John Bertrand, which appeared on the back of the check as indorsers, were forged. But the allegation was that the name of T. G. Cutlip, who appeared as the drawer of the check, was forged, and evidence was introduced to sustain this allegation.

If the payee in this check had been John Smith or some other person than Walter Curley, the defendant, and the defendant had forged the name of John Smith, or the payee, on the back of the check as indorser, that would have presented a different situation; for in that event the defendant, as held in Wells v. Territory, 1 Okla. Cr. 469, 98 Pac. 482, would then have been guilty of two separate and distinct offenses, that of knowingly uttering the check to which the name of T. G. Cutlip as drawer had been forged, and of also forging the name of John Smith, the payee, as indorser, and then uttering the same. But there was only one offense charged in the information, and only one attempted to be proved, and that was the crime of knowingly uttering and passing a check to which the name of T. G. Cutlip as drawer had been forged. And there could be no reason, we think, for requiring the pleader to set out and plead in the informa' tion that the check was endorsed by Walter Curley and John Bertrand, since their names as indorsers were not forgeries, and constituted no essential. of the crime charged. We can see no more reason, under the facts in this case, for requiring their indorsement of this check to be pleaded than there would be for requiring the name of the person to whom a stolen horse had been sold to be pleaded in an indictment for the larceny of a domestic animal. The fact that the horse was sold would be conclusive evidence that the accused intended to deprive the owner of the horse. But the sale, the conditions and circumstances of the sale, the consideration, and to whom it was sold would be matters of evidence, and not of pleading. And the fact that the defendant, Walter Cur-ley, and John Bertrand indorsed this forged check, came together to cash it, and divided the proceeds after it was cashed, are all only evidential facts tending to establish the one crime charged, which was that of knowingly uttering and passing a forged check. And the fact that the back of the forged check pleaded furnished one item of this evidence did not constitute “a variance between the proof and the pleadings”; for the allegation was that the forged check had been uttered and passed; and the only function that the names on the back of this check performed, since they were not forged, but genuine, was to furnish evidence as to the identity of the parties who uttered and passed the check.

But the state insists that this court should reverse the order granting a new trial, and remand the case, with directions to the trial judge to reinstate the.verdict and pass sentence upon the defendant in conformity with the verdict. But it is our . opinion that this cannot be done. The right of the state to appeal is unknown to the common law, and it is only by virtue of the statute that the' right, of the state to appeal exists at all. And we do not believe that our statute is broad enough to give the state the right to appeal from an order per se granting a new trial. And, had it not been for the manifest errors of law involved in the order in this case, this appeal would have had to be dismissed. But since the errors in holding the information defective, and that there was “a variance between the proof and the pleadings,” were so fatal to the rights of the state, and would necessarily recur in a retrial of' the case, we think our statute justifies us in settling these legal questions for the guidance of the court in the next trial. But several states have passed upon the right of the state to appeal from orders granting a new trial, and none that we have been able to find which have statutes similar to ours uphold or allow such appeals. In fact, we know óf no state that does allow such appeals, except California, and it has a statute specifically providing for such appeals. The general trend of the decisions is to the effect that the granting of a new trial is largely a matter of sound judicial discretion, and usually involves questions of both law and fact; and, when such' a discretion has been exercised in favor of the defendant, it is very much like the verdict of a jury in his favor, and the state should have no right to appeal from it, unless such right is unquestionably given. People v. Beckwith, 42 Hun (N. Y.) 366; State v. Northrup, 13 Mont. 522, 35 Pac. 228; State v. Spencer, 92 Ind. 115; State v. Perry, 4 Baxt. (Tenn.) 438; State v. Padgett, 82 N. C. 544. This holding is based not only upon long experience, but, as we believe, also upon sound reason.

There is therefore nothing left for this court to do but remand the case for a new trial in compliance with the order of the district judge, with directions that such trial be in conformity to the views herein expressed upon the legal question passed upon in this opinion.

It is so ordered.

DOYLE, P. J., and ARMSTRONG, J., concur.


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      Ex parte TOM. J. JOHNSON.
    No. A-2782.
    Opinion Filed January 4, 1917.
    (161 Pac. 1097.)
    1. JURY — Jufy Trial — Right to. The Bill of Rights of the Constitution of Oklahoma declares that: “The right of trial by jury shall be and remain inviolate, and a jury for the trial of civil and criminal cases in courts of record, other than county courts, shall consist of twelve men; but, in county courts and courts not of record, the jury shall consist of six men.” Const, art. 2, sec. 19.- And that: “In all criminal prosecutions the accused shall have the right of a speedy and public trial by an impartial jury of the county in which ¡the crime shall have been committed.” Const, art 2, see. 20. Held, that a person prosecuted under a city ordinance for an offense which is also made a misdemeanor by statute, or an ordinance, the punishment for a violation of which is or may lie imprisonment, is entitled tó a jury-trial in the court of original jurisdiction, and to accord to the accused the right to be tried by a jury in the .county court on appeal after conviction in the municipal court, does not satisfy the requirements of the Constitution. In such case a judgment of conviction in the municipal ¡court, not based upon a verdict of guilty by a jury, is void.

      ¿ MISDEMEANORS — “Municipal Courts” — ''‘Offense.” Section 1, e. 147, Sess. Laws .1915, defines municipal courts “to mean and include all the courts of the State of Oklahoma, organized and existing in ¡the various towns and cities thereof which shall have and possess, under the laws of the state, original jurisdiction to hear and determine offenses against the ordinances of municipalities,” and defines an “offense” “to mean the doing of some act or the failure to perform some duty, commanded by some municipal ordinance, or by law, for the violation of which a penalty or punishment is provided thereby,” and declares such proceedings to be “criminal in their nature; and except as otherwise specifically provided, shall be governed by, and subject to, general laws relating to criminal procedure.” Held, that in respect to “offenses” under city ordinances, the punishment for which is or may be imprisonment, conviction of the accused without a jury trial would be in contravention of section 7 of the Bill of Rights, providing that “No person shall be deprived of life, liberty, or property, without due process of law,” because under the constitutional provisions a jury is an essential part of every tribunal for the trial of criminal cases, and such constitutional provisions place the right to trial by jury beyond the power of the Legislature to abrogate or abridge it, and it is beyond the power of the Legislature to confer jurisdiction on any tribunal to try criminal oases without providing for jury trials.
    3. JURY — Constitutional Guaranties — Evasion. The constitutional guaranties intended to secure the liberty of the citizen and the right to a trial by jury cannot be evaded by the nature of the powers vested in the municipality under its charter, or the nature of the jurisdiction conferred upon the municipal court.
    Application • by Tom J. Johnson for writ of habeas »corpus.
    Writ allowed, and petitioner discharged.
    On behalf of Tom J. Johnson, a duly verified petition for writ of habeas corpus was presented to the Presiding Judge of this court representing that he is illegally restrained of his liberty by the officers of the city of Oklahoma City, and is now compelled to work on the highways near the city of Edmond in Oklahoma county by some contract arrangement existing between the officers of the city of Oklahoma City and the officers of the county of Oklahoma.
    It is further averred in said petition:
    “That the cause of said restraint, according to the best of the knowledge and belief of the petitioner is* that the said Tom J. Johnson, petitioner herein, was convicted of the crime of vagrancy on the 8th day of July, 1916, in the municipal court of the city of Oklahoma City, Oklahoma, and was, by said court on said 8th day of July, 1916, fined in the sum of ninety-nine dollars ($99.00) and imprisonment in the city jail of Oklahoma City for a period of ninety (90) days. Your petitioner alleges and states that said restraint is illegal and void in this: That the municipal court of Oklahoma City, State of Oklahoma, had no jurisdiction to fine your petitioner in the sum of ninety-nine dollars and imprison him for a period of ninety days in the city jail of Oklahoma City, Oklahoma. That said judgment is illegal and void and in violation of the Constitution of the State of Oklahoma, the general laws of said state and the charter of said city of Oklahoma City. Your petitioner further says that he is illegally restrained of his liberty and illegally and unlawfully compelled to work Math convicts upon the highways of Oklahoma county, State of Oklahoma, under and by virtue of some contract or arrangement between the said Oklahoma City and the authorities of Oklahoma county, Oklahoma, and that said contract or arrangement whereby he is compelled to work upon the public highways of Oklahoma county, Oklahoma, is in violation of section 2, article 23, of the Constitution of the State of Oklahoma, and is unlawful, unconstitutional and void. Wherefore your petitioner prays the honorable court to grant a writ of habeas corpus, and that he be discharged, without delay, from such unlawful imprisonment.”
    A writ of habeas corpus was issued, and in response thereto the officers to whom it was directed produced the petitioner in court, and at the same time filed their answer and return duly verified, which, omitting formal parts, is as follows:
    “Return of Cpiief of Police and Sheriff.
    “Comes now W. B. Nichols, chief of police of Oklahoma City, and M. C. Binion, sheriff of Oklahoma county, Oklahoma, and for return of the writ of habeas corpus
      issued herein on the 12th day of July, A. D. 1916, shows to the court that said Tom J. Johnson is in custody by reason of the following facts: That heretofore, to wit, on July 8th, 1916, a complaint was filed in the municipal court of the city of Oklahoma City charging the said Tom J. Johnson with vagrancy, as is shown by the copy of the complaint hereto attached, marked Exhibit A, and made a part hereof'. That thereafter, on the 8th day of July, A. D. 1916, the said Tom J. Johnson was duly arraigned in the municipal court of the city of Oklahoma City, entered a plea of not guilty, and after trial duly had before said court the said Tom J. Johnson was found guilty of beiñg a Vagrant as defined by section 702 of the Revised Ordinance of the city of Oklahoma City, and was duly adjudged to pay a fine of ninety-nine ($99) dollars and costs in said case, and to be confined in the city jail of the city of Oklahoma City for a period of ninety (90) days. That at the time' said judgment and sentence was imposed upon the said Tom J. Johnson, he was notified of his right of appeal, and that no appeal from said judgment and sentence has been taken, and that thereafter on the 8th day of July, 1916, the said Tom J. •Johnson was duly committed to the city jail of Oklahoma City by virtue of a mittimus duly issued and by said municipal judge, a copy of which is hereto attached, marked Exhibit B and made a part hereof. That thereafter on the-day of July, 1916, by virtue of an agreement existing between the board of county commissioners and the board of city commissioners of the said city of Oklahoma City, and said Tom J. Johnson was turned over to and was received by said board of county commissioners for the purpose of working the said Tom J. Johnson upon the public highways of Oklahoma county. That prior, to the turning , of said Tom J. Johnson over to the board of county commissioners, the said Tom J. Johnson had been sentenced, to the city jail for the offense of vagrancy and had not paid the fine and costs assessed against him. That said county commissioners have not and will not pay for the services of the said Tom J. Johnson, except the cost of his maintenance. Wherefore, respondent having duly answered said writ prays that said writ of habeas corpus be denied and that the said Tom J. Johnson be returned to the custody of your respondents.
    “W. B. Nichols, M. C. Binion, Respondents.”

    On July 15, 1916, petitioner being present in court in person and by his counsel it was agreed that the case should be submitted to the court on the facts stated in the petition and the answer thereto. Upon the conclusion of the arguments and after a consideration of the same the decision and opinion of the court were delivered by the Presiding Judge, holding that the petitioner is unlawfully restrained of his liberty as averred, and it was ordered that he be discharged from further custody and go hence without day.

      O. A. Cargill and Rainer, Burns & Toney, for petitioner.

      B. D. Shear, Municipal Counselor, and John Embry, Co. Atty., for respondents.
   DOYLE, P. J.

(after stating the facts as above). From the petition upon which the writ issued and the answer thereto, it appears that the petitioner was convicted- in the municipal court of Oklahoma City on a charge of vagrancy as defined by the city ordinance and was sentenced to imprisonment for 90 days and to pay a fine of $99, and failing to pay said fine that he be further imprisoned until the same is satisfied. That he was then transferred to the custody of the overseer- of the Oklahoma county convict road gang, who put him at hard labor on the public roads of the county.

Counsel for the petitioner contend that his conviction was illegal and void in that the municipal court was without • jurisdiction to render a judgment imposing a jail sentence and fine, because he was denied his constitutional right to a jury trial.

The argument of counsel for respondents is' that 'the general authority given under certain sections of the charter of Oklahoma City to pass all necessary ordinances is sufficient, although there is no specific grant of authority in the charter giving the municipal authority the power to impose a fine ’or an imprisonment for a violation of any ordinance; that in addition to the general grant of powers in the city charter, all specific grants of authority given to a city council of a city of the first class under the Constitution and laws of the state in force at the time of the adoption of the charter would by reference and by adoption under those sections of the charter be conferred upon the board of commissioners of the city of Oklahoma City, including, among others, section 601, Rev. Laws 1910, which is the only section in the statute that specifically grants power to a city to impose a fine of not to exceed $100 and imprisonment not to exceed three months or both' such fine and imprisonment for a violation of an ordinance. That compelling a city prisoner to work on the county roads is no part of the judgment and sentence pronounced upon him by the municipal court, as this authority depends upon the agreement between the board of city commissioners and the board of county commissioners, which agreement is .not within the inhibition of the Constitution providing: “That contracting of convict labor is hereby prohibited.” Const, art. 23, sec. 2. And it is argued that the statute providing for appeals from judgments of conviction in municipal courts to county courts sufficiently' recognizes and satisfies the constitutional right to a trial by jury; the same being section 2, c. 147, Sess. Laws 1915, entitled “An act to regulate appeals from, judgments of municipal courts, prescribing the procedure thereof, and •repealing all laws in conflict herewith.”

• This presents ■ the principal question for decision in the case.

The pertinent sections of said act are as follows:

“Section 1. Definitions. The term .‘municipal courts’ as herein used is hereby defined to mean and include all the courts of the State of Oklahoma, organized and existing in the various towns and cities thereof which shall have and possess, under the laws of the state, original jurisdiction to hear and determine offenses against the ordinances of municipalities, and an ‘offense’ is hereby defined to mean the doing of some act, or the failure to perform some duty, commanded by some municipal ordL nance or by law, and for the violation of which a penalty or punishment is provided thereby. Such proceedings are hereby declared to be criminal in their nature; and except as otherwise specifically provided, shall be governed by, and subject to, general laws relating to criminal procedure..
“Sec. 2. In, all cases before a municipal court, except a judgment rendered on confession, an appeal may be taken by the defendant to the county court, and to such court only, where the trial thereof shall be had de novo on questions of both law and fact.
“Sec. 3. No such appeal shall be allowed, however, unless the defendant shall, within ten days after the rendition of such judgment, enter into 'a recognizance payable to said municipality, to be approved as to amount, form, and sureties, by the trial judge, in the penal sum of not less than fifty dollars nor more than five hundred dollars, and in no case less than double the amount of fine and cost.”
“Sec. 8. In the trial of said cause in the county-court it shall be the duty of the court to try the case in the same manner that it should have been tried before the municipal court, except that upon demand of either party a jury shall be called to try the issues joined in said cause.”

The constitutional provisions securing the right of trial by jury are the following declarations of the Bill of Bights:

“Sec. 19. The right of trial by jury shall be and remain inviolate, and a jury for the trial of civil and criminal cases in courts of record, other than county courts, shall consist of twelve men; but, in county courts and courts not of record, a jury shall consist of six men.
“Sec. 20. In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.”

The right of “trial by jury” secured by the first clause in section 19 of the Bill of Bights includes the elements of trial by jury as they were known and understood by the framers of the Constitution and the people when they adopted it. By both provisions the right of trial by jury is preserved in all cases, with such modifications as are specified, as it existed at the time of the adoption of the Constitution. And both secure the right of one accused of crime to demand a trial by jury, without regard to the name or grade of the offense charged against him. Ordinarily the right of trial by jury will be presumed in all cases where it existed at the time of the adoption of the Constitution.

The framers of our Constitution in which this right is so sedulously guarded well knew that a trial by jury afforded the best protection for innocence, and the surest mode of punishing guilt, yet discovered among men. They knew very well that no people could be free under a government which had the power to punish without restraint. Hamilton expressed in the Federalist the universal sentiment of his time, when he said that:

“The arbitrary power of conviction and punishment for pretended offenses had been the great engine of despotism in all ages and all countries.”

The declarations of the Bill of Rights securing the right of trial by jury are prohibitions operating upon the legislative as well as positive commands to. the judicial department, and the doctrine is elementary that while the Legislature may extend this right, it is beyond the power of the Legislature to abridge, impair, or materially change the right in any of its essential features. Article 6 of the Amendments to the federal Constitution is almost identical in its terms with section 20 of our Bill of Rights.

The principles which underlie the question here presented have received careful consideration in several cases before the Supreme Court of the United States. The following cases define the right as.it existed when our Constitution was adopted: Reynolds v. United States, 98 U. S. 148, 25 L. Ed. 244; Callan v. Wilson, 127 U. S. 540, 8 Sup. Ct. 1301, 32 L. Ed. 223; American Pub. Co. v. Fisher, 166 U. S. 467, 17 Sup. Ct. 618, 41 L. Ed. 1079; Thompson v. Utah, 170 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 1061; Capital Traction Co, v. Hof, 174 U. S. 5, 19 Sup. Ct. 580, 43 L. Ed. 873; Black v. Jackson, 177 U. S. 349, 20 Sup. Ct. 648, 44 L. Ed. 801; Rassmussen v. United States, 197 U. S. 516, 25 Sup. Ct. 514, 49 L. Ed. 862.

In the case of Callan v. Wilson, supra, the Supreme Court of the United States, passing upon the precise question raised here,, held that:

“To accord to the accused a right to be tried by a jury, in an appellate court, after he has been once fully tried, otherwise than by a jury, in the court of original jurisdiction, and sentenced to pay a fine or be imprisoned, * * * does not satisfy the requirements of the Constitution.”

In that case it appears that by an information filed by the United States in the police court in the District of Columbia the petitioner Callan, with others, was charged with the crime of conspiracy, and having been found guilty by the court, he was sentenced to pay a fine of $25, and upon default in its payment to suffer imprisonment in jail for the period of 30 days.

Mr. Justice Harlan, delivering the opinion of the court, in part, said:

“The third article of the Constitution provides that ‘the trial of all crimes, except in cases of impeachment, shall be by jury and such trial shall be held in the state where the said crime shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.’ The Fifth Amendment provides that no person shall ‘be deprived of life,' liberty, or property, without due process of law.’ By the Sixth Amendment it is declared that ‘in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury-of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory' process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.’ The contention of the appellant is, that the offense with which he is charged is a ‘crime’ within the meaning of the third article of the Constitution, and that he was entitled to be tried by a jury; that his trial by the police court, without, .a jury, was'not ‘due process of law’ within the meaning of the Fifth Amendment; and that, in any event, the prosecution against him was a ‘criminal prosecution,’ in which he was entitled, by the Sixth Amendment, to a speedy and public trial by an impartial jury. * * * It would be a narrow construction of the Constitution to hold that no prosecution for a misdemeanor is a prosecution for a ‘crime’ within the meaning of the third article, or a ‘criminal prosecution’ within the meaning of the Sixth Amendment. And we do not think that the amendment was intended to supplant that part of the third article which relates to trial by jury. There is no necessary conflict between them., Mr. Justice Story says that the amendment, ‘in declaring that thé accused' shall enjoy the right to a speedy and public trial by an impartial jury of the state or district wherein the crime shall have been committed' (which district shall be’previously ascertained by law),- and to be informed of the nature and cause of the accusation, and to be confronted with the witnesses against him,' does but follow out the established course of the common law in all trials for crimes.’ Story, Const, par. 1791. And as the guarantee of a trial by jury, in the third article, implied a trial in the mode and according to the settled rules of the common law, the enumeration, in the Sixth Amendment, of the rights of the accused in criminal prosecutions, is to betaken as a declaration of what those rules were, and is to be referred to the anxiety of the people of the states to-have in ,the supreme law of the land, and so far as the agencies of the general government were concerned,, a full and 'distinct recognition of those rules, as involving the • fundamental rights of life, liberty, and property. This recognition was demanded and secured for the benefit of all the people of the United States, as well those permanently or temporarily residing in the District of Columbia, as those residing or being in the several states. There is nothing in the history of the Constitution or of the original amendments to justify the assertion that the people of this district may be lawfully deprived of the benefit of any of the constitutional guarantees of life, liberty, and property — especially of the privilege of trial by jury in criminal cases.”

In answering the argument that the provisions of "the act of Congress which gave a party convicted in the police court a right' of appeal and the right of trial by jury in a higher court, the learned justice said:

“These provisions, undoubtedly, secure, the right of appeal from the police court to the Supreme Court of the district, and a trial by jury in the latter court. But the. fact remains that the accused may, under the statute, be tried in the court of original jurisdiction, upon the issue of guilt or innocence; and by its judgment, unless he gives security for his appearance in another court, he may be deprived of his liberty. The'police court is not, in such cases, an examining court merely, but a trial court, in the fullest sense of those words.”

And after reviewing the authorities upon this subject, the learned justice concludes:

“We cannot assent to that interpretation of the Constitution. Except in that class' or grade of offenses called petty-off enses, which, according to the common law, may be proceeded against summarily in any tribunal legally constituted for that purpose, the guarantee of an impartial jury to the accused in a criminal prosecution,, conducted either in the name, or. by or under the authority- of the United States, secures to him the right to enjoy that mode of trial from the first moment, and in whatever court, he is put on trial for the offense charged. In such cases a judgment of conviction, not based upon a verdict of guilty by a jury, is void.”

In the case of Bettge v. Territory, 17 Okla. 85, 87 Pac. 897, by the unanimous decision of the Supreme Court of Oklahoma Territory, it was held' that:

“Under the provisions of the federal Constitution, the guarantee of an impartial jury in a criminal prosecution, ■secures to the accused the right of a jury trial from the first moment, and in whatever court he is put on trial for the same offense charged.”

And see Miller et al. v. State, 3 Okla. Cr. 457, 106 Pac. 810.

In the case of Miller v. Commonwealth, 88 Va. 618, 14 S. E. 161, 342, 979, 15 L. R. A. 441, the Virginia Supreme Court of Appeals held:

“A jury trial in the first instance is guaranteed by a constitutional provision for trial by jury and the right to a jury trial on appeal will not satisfy such constitutional provision where a jury is not allowed on the original trial.”

To the same effect is Taylor v. Reynolds, 92 Cal. 573, 28 Pac. 688.

By the provisions of the statute above quoted the right of appeal is made to depend upon' the recognizance. If this is not entered into by the prisoner with approved sureties, which he may or may not be able to procure, then the party prosecuted has no appeal and is denied his right to a trial by jury.

It is a matter of common knowledge that in many cases before the police court the prisoner by reason of his poverty is unable to give a good and sufficient bond, and to deny the right of trial by jury in the court having original jurisdiction of. the cause would be in many instances an absolute denial of one of the most sacred rights inherent in the people; and in effect would be a denial of the equal protection of the law.

It has been well said that under our Constitution “there is none so great or powerful as to be exempt from the just penalties of the law, and none so poor and humble or so low as to be unworthy of its protection,” and we should not forget that the worst as well as the best of men are entitled to the protection of the Constitution, and that a strained interpretation of the law which deprives a bad man of his right of personal liberty today may tomorrow deprive a good man of his equally — and in the eyes of some people perhaps more — sacred rights to property.

It will be observed that section one of the act already quoted defines. a violation of an ordinance for which a penalty or punishment is prescribed as an “offense,” and that proceedings for such violations are declared to be criminal in their nature, “to be governed by, and subject to, general laws relating to criminal procedure.” It follows from the view we take that in respect to “offenses” under city ordinances the punishment for which is or may be imprisonment, conviction of the accused would be in contravention of section seven of the Bill of Rights, providing that “no person shall be deprived of life, liberty, or property, without due- process of law,” because under the constitutional provisions a jury is an essential part of every tribunal for the trial of criminal - cases. Both provisions are intended to place the right beyond the power of the Legislature to abrogate or abridge it, therefore it is beyond the power of the Legislature to confer jurisdiction on any tribunal to try-criminal cases without providing for jury trials.

The ordinance in question defines the offense of vagrancy in the identical language of the Penal Code. Section 2515, Rev. Laws 1910. The maximum punishment prescribed by the ordinance is 90 days’ imprisonment, and a fine of $100; that prescribed by the statute is 30 days’ imprisonment, and a fine of $100. It would be an insult to the commonest understanding to say that by virtue of the powers conferred on municipal courts the accused could be submitted to the greater punishment for the same act without a trial by jury, because the prosecution was instituted in the municipal court.

If we needed evidence of the value of the right of trial by jury, we would find abundance of it in the record before us. A citizen is arrested without warrant, is brought before the municipal court, is summarily convicted on hearsay testimony, and is given the maximum sentence, which in effect amounts to six months’ penal servitude. He is poor, and by reason of his poverty he is unable to give an appeal bond; on the mittimus he is then by virtue of a contract between the city and the county placed in the custody of the overseer of the county chain gang to serve out the sentence imposed. The punishment imposed in its nature and character is the same as that imposed for crimes against the state. It cannot be that such punishment can be imposed in Oklahoma by the ipse dixit of a police judge. If the sentence can be for six months, it may be for 12 months if the Legislature should permit it. Truly it is said that “summary judgment is but judicial despotism.” The state and the public have an interest in the preservation of the liberties of the people and will not allow the citizen to be deprived of his liberty without due process of law.

Process which tries a man without formality for some petty municipal offense and punishes him in the same manner as, and along with, criminals violating the laws of the state, with no right to a jury trial, is not due process of law. The conclusion necessarily follows that the constitutional provisions guaranteeing to the accused the right of trial by jury secure the right of such a trial in the court having original jurisdiction. In so far as the opinions in the case of In re Simmons, 4 Okla. Cr. 667, 112 Pac. 951, 5 Okla. Cr. 399, 115 Pac. 380, and Meloy v. City of Woodward, 7 Okla. Cr. 16, 120 Pac. 1119, conflict with this opinion, they are overruled.

The right of a trial by jury is only one among the several rights enumerated in the Bill of Rights. They are all necessary to a complete enjoyment of that personal liberty which is our birthright, and which it is the duty, not only of the courts, but of every citizen to jealously guard. They are all designed to safeguard the accused in all criminal prosecutions, so that no person may “be deprived of his liberty except by the law of the land, or the judgment of his peers.”

For the reasons stated we are of the opinion that the right to a trial by jury cannot be evaded by the nature of the powers vested in the municipal corporation1, or the nature of the jurisdiction conferred upon municipal courts. It follows that the proceedings had upon the trial and conviction of the petitioner weré illegal and void, and said court was without jurisdiction to render the judgment and sentence.

The petitioner must therefore be discharged from custody.

ARMSTRONG and BRETT, JJ., concur.


text:
      Ex parte LEE KENNEY.
    No. A-2789.
    Opinion Filed January 8, 1917.
    (161 Pac. 1199.)
    Petition by Sylvia Kenney, on behalf of Lee Kenney, for a writ of habeas corpus directed against M. C. Binion, Sheriff.
    Writ denied.

      J. L. Francis, for petitioner.

      R. McMillan, Asst. Atty. Gen., for the State.'
   PER CURIAM.

The petition is filed on behalf of Lee Kenney, by his mother, Sylvia Kenney, alleging that her son, Lee Kenney, is illegally restrained of his liberty by M. C. Binion, sheriff of Oklahoma county; that the cause of said restraint is a judgment and sentence of the county court on a conviction for unlawfully transporting intoxicating liquors rendered on the 3d day of June, 1916, wherein said Lee Kenney was sentenced to be imprisoned in the county jail for a period of 30 days and to pay a fine of $50, and in default of the payment of said fine that he be further imprisoned until the same is satisfied as by law provided; “that said restraint and imprisonment is illegal and unauthorized, by reason of the fact that said term of imprisonment has expired; and that the fine therein imposed has been fully paid and discharged by credits to which the said Lee Kenney is entitled for work and labor done and performed on the county roads of Oklahoma county and by enforced imprisonment.” On July 20, 1916, the petition was presented to the court, and a demurrer thereto was sustained, and the writ denied, on the ground that upon the face of the petition it was shown that the judgment and sentence in the! case has not been fully executed and satisfied.


text:
      Ex parte DOROTHY McALESTER.
    No. A-2791.
    Opinion Filed January 9, 1917.
    (161 Pac. 1176.)
    1. HABEAS CORPUS — Questions Presented — Jurisdiction of Court. The jurisdiction of a court or judge to render a pai’tioular judgment or sentence by which a person is imprisoned is always a proper subject of inquiry on habeas corpus.
    2. JURY — Jury Trial — Right to. The constitutional' guaranties intended to secure to the citizen the right of a trial by jury cannot be evaded by the nature of the powers vested in the municipality under its charter, or the nature of the jurisdiction conferred upon the municipal court.
    In the matter of the application of Dorothy McAles-ter for a writ of habeas corpus.

    Writ issued, and petitioner discharged.

      F. S. Winn, for petitioner.

      B. D. Shear, Municipal Counselor, and Frank Watson, for respondent.
   DOYLE, P. J.

This is an application for writ of habeas corpus by Dorothy McAlester, who alleges that she is illegally restrained of her liberty by W. B. Nichols, chief of police of Oklahoma City.

It is alleged in the petition that on the 1st day of July, 1916, petitioner was convicted on a charge of vagrancy in the municipal court of Oklahoma City, and was sentenced to pay a fine of $25 and costs, and to be confined in the city jail for 30 days; that thereafter the city officers of said city accepted the sum of $11 and costs in full payment of said fine and costs, and ordered that said jail sentence would be suspended during the absence of the petitioner from Oklahoma City; that petitioner in obedience to said arrangement and order went to her home near Jones City' in Oklahoma county and remained there until Saturday, July 15th, when she returned to Oklahoma City in pursuance of a notice from < her attorney, F. S. Winn, to be present at the district court of Oklahoma county on said day for the purpose of trying a divorce case; that said case was not called on said day, and her attorney requested petitioner to remain' over in said city until Monday July 17th, to attend the trial of said divorce case; that on Sunday afternoon, petitioner was arrested and placed in the city jail, and on Monday morning, July 17th, she was brought into the municipal court of said city, and again tried upon the charge of vagrancy, and was convicted and sentenced to pay a fine of • $99 and costs and to serve a jail sentence of 30 days; “that at the time the case was called for trial your petitioner acquainted the court with the facts requiring her presence in the city, and requested' said court that she have opportunity to procure her counsel, F. S. Winn, and have said cause continued, in order that she might be able to prove said facts; that said court refused to,continue said cause, or to get any information to said attorney, and convicted your petitioner without any proof ■ whatever, as to the? offense of vagrancy or any. other offense.” On the filing of the petition the writ issued returnable on the 20th day of July, 1916, at which time the officer to whom it was directed produced the petitioner in court, and at the same time filed h's answer.

There is no necessity for us to pass upon any other than one of the various questions raised in this case; that question is whether or not the judgment and sentence by virtue of which she is imprisoned is void. The jurisdiction of a court or judge to render a particular judgment or sentence by which a person is imprisoned is always a proper subject of inquiry on habeas corpus... In re Wilkins, 7 Okla. Cr. 422, 115 Pac. 1118.

The question here presented has been passed upon in the case of Ex parte Johnson, ante, p. 30, 161 Pac. 1097. Under the holding of the court in. that case the municipal court was without power or authority to try and convict the petitioner without a jury trial, and said court exceeded its jurisdiction in rendering the judgment nad sentence.

It follows that petitioner must therefore be discharged from custody.

ARMSTRONG AND BRETT, JJ., concur..


text:
      Ex parte J. E. BARTOS.
    No. A-2854.
    Opinion Filed January 9, 1917.
    (161 Pac. 1198.)
    Application by J. E. Bartos for writ of habeas corpus.

    Writ denied.

      Charles T. Gibson, for petitioner.
   PER CURIAM.

The petition filed in behalf of J. E. Bartos alleges in substance that he is illegally restrained and unlawfully imprisoned in the city jail in Shawnee by C. C. Hawk, chief of police of said city, by virtue of a commitment issued on a judgment wherein petitioner was sentenced to pay á fine of $20; that said city was without authority to'pass or enforce said purported ordi-nhnce under which petitioner was convicted, and the same is void. Thé court refuses to issue the writ for the-reason that it is not shown by the allegations of the petition that the same had been presented to either the county-court or judge thereof, or the district court or district judge, before being filed in this court, as required by the-rules of this court. The writ is therefore denied.