text:
      Ex parte Edward B. Justus.
    No. A-234.
    Opinion Filed October 25, 1909.
    (104 Pac. 933.)
    1. HABEAS CORPUS — Grounds of Relief. This court on habeas corpus will not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure, or errors in law on questions over which the court had jurisdiction.
    .2. COURTS — “Court of Competent Jurisdiction.” A court of com-’ petent jurisdiction is one having power and authority of law at the time of acting to do the particular act.
    ■3. HABEAS CORPUS — Remedy by Writ of Error or Appeal. The writ of habeas corpus cannot be used to perform the office of a writ of error or appeal, and should be limited to cases in which the judgment and sentence of the court attacked is clearly void.
    ■4. HABEAS CORPUS — Grounds for Relief — Want of Authority. If the petitioner be imprisoned under a judgment of a court which had no authority to render the judgment complained of, then relief may be accorded by habeas corpus.
    (Syllabus by the Court.)
    Original petition for habeas corpus by Edward B. Justus.
    Writ granted.
    This is an original action in this court on petition for writ ■of habeas corpus. The petitioner is confined in the State Penitentiary at MeAlester, Okla., under judgment and sentence issued nut of the district court of Kay county, Okla., then Oklahoma Territory, September 30, 1898. That part of the petition neees-sai7 to be copied is as follows:
    “That the said It. W. Dick, warden as aforesaid, restrains your petitioner by reason of a certain judgment and sentence issued out of the district court of Kay county, Okla. T., September 30, 1898, which proposes to adjudge your petitioner guilty of and to sentence him for the crime of murder, under which your petitioner was confined in the Kansas state penitentiary, at Lansing, Kan., and under the authority conferred by the law of Oklahoma approved April 26, 1905, which directed the removal of •certain prisoners from Kansas to Oklahoma, was no authority for removing your petitioner because he was not sentenced to either the Kansas state penitentiary at Lansing, Kan., or the territorial prison. That said district court of Kay county, territory of Oklahoma, was without jurisdiction to try, adjudge, and sentence your petitioner for the following reasons^ to wit: Your petitioner was arrested in Kay county. Oída. T., May 24, 1898. On May 28th following the county attorney made the following affidavit: ‘G. L. Pinkham, of lawful age and being first duly .sworn, on his oath deposes and says that he is the county attorney of Kay county, Oklahoma Territory ; that one Justus is now confined in the county jail of Kay county under the charge'of' murder, and your affiant has reason to believe, and does believe, that the said jail is insufficient in which to hold the said Edward 'B. Justus in the present state of public mind. [Signed] C. L. Pinkham, County Attorney.’ And the following order was thereupon entered by the judge of the district court of said county: Now, on the 28th day of May, 1898, this case came on for hearing on the affidavit of the county attorney of Kay county, showing to the court that the said Edward B. Justus is charged with the crime of murder committed in ’said county and is now confined in Kay county jail, that said jail is insufficient for the safekeeping of said Justus, and that the public mind is in a more or less excited state. Wherefore the court, being duly advised in the premises, is of the opinion that the said Justus should be transported and kept in some other county in the térritory. Wherefore it is ordered by the court that the sheriff of Kay county transport the said Edward B. Justus to the county jail of Logan county for safekeeping for a period,of 90 days. At the expiration whereof he shall return the said Edward B. Justus to the county jail. [Signed] Bayard T. Iiainer, Judge.’ On the 12th day of September thereafter your petitioner was called to the bar of the district court of Kay county, and, before pleading to the indictment, filed the following affidavits: /Comes Edward B. Justus, above-named defendant, who, being duly sworn, on his oath deposes and sajrs that he cannot have a fair and impartial trial in the county of Kay, in said territory, for the reason that there is a prejudice against him existing in said county, that such prejudice was so strongly arrayed against him, said defendant, that it was necessary for the officials of said county to remove him from the body thereof to keep him safely from mob violence with which he was threatened pending investigation of the charge against him by the grand jury; that a conspiracy was formed’ to do him serious injury, and there were serious threats made against him by the citizens of said county; that affiant believes that the same spirit now exists in said county. Wherefore he asks for a change of venue of said cause to some other county in the territory. [Signed] B. B. Justus.5 ‘Also personally appeared Andrew Jones and J. H. Helms, who, both being first duly sworn on their oaths, depose and say they are residents of said county, and territory, and have heard read the above and foregoing affidavit of Edward B. Justus, defendant in the above cause, and know the contents thereof, and that the allegations contained therein are true.' Af-fiants further depose and say that said defendant cannot have a fair and impartial trial in said county by reason of the facts stated in said defendant’s affidavit, and that they have no interest in the results of the trial, but only desire that justice may-be done the accused. [Signed] Andrew Jones. J. H. Helms.5 All of the above affidavits set forth were duly and properly sworn to as the law requires, and certified copies thereof are attached hereto, marked, ‘Exhibits — Affidavits.5 Thereupon the county attorney filed the affidavits of 24 persons in opposition to said motion for a change of venue, and the court, after hearing said motion and affidavits, did overrule said motion, as follows: Now, on this 12th day of September, this case is called, and the defendant is ordered brought into court. Thereupon Ed. Justice, whose true name is Edward B. Justus, is produced in court in custody of the sheriff of Kay county. The territory is represented by C. L. Pinkham, county attorney, and the defendant is present in person and by C. W. Curran and A. A. Byers. Thereupon the defendant b3r his attorneys presents a motion for change of venue supported by the affidavits of two disinterested persons. And thereupon the corudy attorney of Kay county, on behalf of the territory^ of Oklahoma, presents the affidavits of 24 disinterested persons in opposition to said motion for a change of venue. The court, after hearing the said motion and affidavits and arguments of counsel, and being fully advised in the premises, overrules said motion for a change of venue to which ruling overruling said motion, the defendant at the time duly excepted and excepts. Thereupon the said defendant is remanded to the custody of the sheriff of Kay county,5 which order was entered in Journal No. 4, at page 155, a certified copy whereof is hereto attached marked, ‘Exhibit — Journal entry.555
    The petition further sets out the proceedings showing the defendant was tried and convicted and sentenced to imprisonment in the territorial penitentiary for the term of his natural life at hard labor; and, after setting out the necessary exhibits as to the record, says:
    “Your petitioner says that said judgment and sentence and all other, proceedings in anct orders made by the said district court of Kay county were null and void, which were made after your petitioner filed his motion and affidavit for a- change of venue.”
    The petition concludes with the prayer that the petitioner be discharged from prison and restored to his liberty, or that, failing therein, he be remanded to the sheriff of Kay county, Olda. The petition is properly verified.

      Eubanks £ Elder and Chas. T. Keller, for petitioner,
    citing: Jones v. Brown, 54 Iowa, 74; Reynolds v. Stockton, 140 IT. S. 254; Moranetz v. Sun Ins. Office, 96 Wis. 175; Watkins £ Go. v. Mullen, 8 Kan. App. 705; Reed v. City of Missoiine, 104 Iowa, 183; State v. Kent (N D.) 67 N. W. 631; Whittier v. Taylor, 7 Ind. 110; Raferiy v. People, 66 111. 118; Allerton v. Eldridge, 56 Iowa, 709; Paul v. Ziebell (Neb.) 61 N. W. 630; In re White, 37 Cal. .190; Bennett v. State, 3 Ind. 167'; Virginia v. Paul', 148 IT. S. 107; Miskimins v. Shaver, 8 Wyo. 982; Brown on Jurisdiction, secs. 25, 97; Cook v. Baxter, 27 Ark. 480; Shannon v. Smith, 31 Mich. 450; Smith v. People, 2 Colo. App. 99; State v. Superior Court, 5 Wash. 518; State v. Evans, 13 Mont. 239 ■, I ¡illegal v. Truman, 60 Wis.-254; State v. Weliner, 7 N. D. 522; State v. Shipman (Mo.) 6 S. W. 97.

      Chas. Wesi, Atty Gen., E. G. Spilman and Chas. L. Moore, Assts. Atty Gen., and .0. L. Pinkham, Ex-Co. Atty., for respondent. No copjr of brief reached the reporter.
   OWEN, Judge

(after stating the facts as above). The case at bar is one of unusual history. At the time this petitioner was tried the territorial penitentiary was .at Lansing, Kan. His case was appealed to the Supreme Court of Oklahoma Territory, and the appeal dismissed. After his appeal had been dismissed by the Supreme Court of • the territory, and while in the .territorial prison at Lansing, Kan., he applied to the Supreme Court of Kansas for a writ of habeas corpus as reported in 65 Kan. 547, 70 Pac. 354. The writ was denied. The petitioner was under the authority conferred by the' law of Oklahoma approved May 26, 1908 (Laws 1908, p. 264, c. 22), removed to the state penitentiary of Oklahoma at McAlester. In this proceeding we are asked to pass on the identical question presented on appeal to the Supreme Court of - the territory of Oklahoma and to the Supreme-Court of the state of Kansas on petition for writ of habeas corpus. It cannot-be contended that the judgment of the Supreme Court of Kansas’ precludes this court from inquiring into the legality of the imprisonment. By the great preponderance of authority the principle of res adjudicata, where not otherwise provided by statute, has no application in habeas corpus, and a decision on one writ is no bar to proceedings on subsequent habeas corpus proceed-' ings. Ex parte Johnson, 1 Okla. Cr. 414, 98 Pac. 461.

Neither is the decision of the Supreme Court of the territory of Oklahoma in dismissing the appeal conclusive on this court in the sense that would preclude this court from considering the petition as presented here.

This corirt op habeas corpus will not look beyond the judgment and sentence of any court of competent jurisdiction as to any. mere irregularities of procedure or errors in law on questions over which the court had jurisdiction.

A judgment in its nature concludes the subject on which it is rendered, and pronounces the law of the ease. The judgment of a court of record, whose jixrisdiction is final, is as conclusive on all the world as the judgment of this court would be. It is as conclusive on this court as on other courts. It puts an end to inquiries concerning the fact by deciding it. But there is a very material difference between an irregularity in procedure that renders a jixdgment voidable and reversible on a writ of error or appeal, and acts which exceed the court’s jurisdiction, or which deny to the defendant a constitutional right, and thereby render the judgment void.

While the writ of habeas corpus cannot be used to perform the office of a writ of error or appeal, and the remedy by habeas corpus should be limited to cases in which the judgment or sentence attacked is clearly, void by reason of its having been rendered without jurisdiction,'or by reason of the court having exceeded its jurisdiction in the premises (In re McN aught, 1 Okla. Cr. 528, 99 Pac. 241), if the petitioner be imprisoned under a judgment of a court which had no jurisdiction of the person or the subject-matter or authority to render the judgment complained .of, then relief may be accorded. This principle is announced by the great weight of authority, and has been repeatedly adhered to by the Supreme Court of the United States. In re Lane, 135 U. S. 443, 10 Sup. Ct. 760, 34 L. Ed. 219; In re Frederich, 149 U. S. 70, 13 Sup. Ct. 793, 37 L. Ed. 653; Ex parte Tyler, 149 U. S. 164, 13 Sup. Ct. 785, 37 L. Ed. 689; In re Swan, 150 U. S. 637, 14 Sup. Ct. 225, 37 L. Ed. 1207.

The statute in force at the time, and under which the petition for change of venue was filed, is as follows:

“A criminal action prosecuted by indictment or by information originally filed in the district court, may, at any time before the trial is begun, on the application of the defendant, be removed from the court and the county in which it is pending as follows: First. If the offense charged in the indictment be punishable with death or imprisonment in the territorial prison for life, if it be made to appear by the affidavit of the accused, and two disinterested persons, that a fair and impartial trial cannot be liad in such count)', a change must be granted.” (Section 5427, Wilson’s Rev. & Ann. St. 1903.)

It is conceded here that the petitioner complied with the requirements of this section. The trial court denied the change of venue. Was the court’s action in denying the change of venue a mere irregularity in procedure, or did it render the action of the court thereafter illegal? Was it merely an error that would only be reversible on appeal or one that rendered subsequent proceedings void ? Article 6 of .the Constitution of the United States provides 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,” etc. This provision guarantees the right of an impartial jury.

Section 10 of the Organic Act of the territory of Oklahoma (Act May 2, 1890, c. 182, 26 Stat. 87), in full force and effect at the time this case was tried, in fixing the venue of cases both civil and criminal concludes with this language:

“But any ease civil or criminal, mair be removed, by change of venue, to another county.”

This gives the defendant the right to a change of venue. Section 5427, above quoted, prescribes the method of securing the change, and thereby securing an impartial jury. When the trial court refused to grant the change, he deprived the defendant of a right guaranteed in the Constitution of the United States, and given in the Organic Act, which had the legal effect and force of a constitution, and was the same in effect as denying the defendant a constitutional right.

In the case of Ex parte Watkins, 3 Pet. 193, 7 L. Ed. 650, and Ex parte Parks, 93 U. S. 18, 23 L. Ed. 787, and a number of subsequent cases, the Supreme Court of the United States refused to look beyond the judgment and sentence of a court of record, holding that it was only where the proceedings -below were entirely void, either for want of jurisdiction or other cause, that relief would be given by habeas corpus. The same court in the case of Hans Nielsen, reported in 131 U. S. 176, 9 Sup. Ct. 672, 33 L. Ed. 118, announced the doctrine that the petitioner should be released on habeas corpus if the record disclosed that he had, on the trial in the lower court, been denied a constitutional right.The syllabus of the case is as follows:

“Where a court is without authority to pass a particular sentence, such sentence is void, and the defendant imprisoned under it may be discharged on habeas corpus. A judgment in a criminal case denying to the prisoner a constitutional right, or inflicting an unconstitutional penalty, is void, and he may be discharged on habeas corpus.”

In the opinion rendered by Mr. Justice Bradley we find the following language, beginning oh page 182 of 131 U. S., page 674 of 9 Sup. Ct. (33 L. Ed. 118) :

“The first question to be considered is, whether, if the petitioner’s position was true that he had been convicted twice for the same offense, and the court erred in its decision, ho could have relief by habeas corpus?
“The objection to the remedy by habeas corpus, of course, would be that there was in force a regular judgment of conviction, which could not be questioned collaterally, as it would have to be on habeas corpus. But there are exceptions to this rule which have more than once been acted upon by this court. It is firmly established that if the court which renders a judgment has not jurisdiction to render it, either because the proceedings or the law under which they are taken are unconstitutional, or for any other reason, the judgment is void, and may be questioned collaterally, and a defendant who is imprisoned under and by virtue of it may be discharged from custody on habeas corpus. This was so decided in the cases of Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872, and Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717, and in several other eases referred to therein. In the case of In re Snow, 120 U. S. 274, 7 Sup. Ct. 556, 30 L. Ed. 658, we held that only one indictment and conviction of the crime of unlawful cohabitation, under the act of 1882, could be had for the time preceding the filing of the indictment, because the crime rvas a continuous one, and was but a single crime until prosecuted; that a second convictiqn and punishment of the same .crime, for any part of said period, was an excess of authority on' the part of the district court of Utah; and that a habeas corpus would lie for the discharge of the defendant imprisoned on such conviction. In that ease the habeas corpus was applied for at a term subsequent to that which the judgment was rendered; but we did not regard this circumstance as sufficient to prevent the prisoner from having his remedy by that writ.
“It is true that in the case of Snow we laid emphasis on the .fact that the double conviction for the same offense appeared on the face of the judgment; but, if it appears in the indictment or anywhere else in the record (of which the judgment is only a part), it is sufficient. In the present case it appeared on the record in the plea of autrefois convict, wliicli was admitted to bo true by the demurrer of the government. We think that this was sufficient. It was laid down by this court in Re Coy, 127 U. S. 731, 758, 8 Sup. Ct. 1263, 32 L. Ed. 274, that the power of Congress to pass a statute under wliich a prisoner is held in custody may be inquired into under a writ of habeas corpus as ■ affecting the jurisdiction of the court which ordered his imprisonment; and the epurt, speaking by Mr. Justice Miller, adds: ‘And, if their want of power appears on the face of the record of his condemnation, whether in the indictment or elsewhere, the court which has authority to issue the writ is bound to release him’— referring to Ex parte Siebold 100 U. S. 371, 25 L. Ed. 717.
“In the present case, it is true, the ground for the habeas corpus was, not the invalidity of an act of Congress under which the defendant was indicted, but a second prosecution and trial for the same offense contrary 'to an express provision of the Constitution. In other words, a constitutional immunity of the defendant was violated by the second trial and judgment. It is difficult to see why a conviction and punishment under an unconstitutional law is more violative of a person’s constitutional rights than an unconstitutional conviction and punishment under a valid law. In the first ease, it is true the court has no authority to take cognizance of the case; but in the' other it has no authority to render judgment against the defendant. This was the case in Ex parle Lange, where the court 'had authority to hear and determine the ease, but we held that it had no authority to give the judgment it did. It was the' same in the case of Snow. The court had authority over the case, but we held that it had no authority to give judgment against the prisoner. He was protected by a constitutional provision, securing to him a fundamental right. It was not a case of mere error in law, but a case of denying to a person a constitutional right. And, where such a case appears on the record, the party is entitled to be discharged from imprisonment. The distinction between the case of a mere error in law, and of one in which the judgment is void, is pointed out in Ex parte Siebold, 100 U. S. 371, 375, 25 L. Ed. 717, and is illustrated by the case of Ex parte Parks, 93 U. S. 18, 23 L. Ed. 787, as compared with the cases of Lange and Snow. In the .case of Parks there was an alleged misconstruction of a statute. We held that to be a mere error in law; the court having jurisdiction of the case. In the cases of Lange and Snow there was a denial or invasion of a constitutional right. A party is entitled to a habeas corpus, not rnerefy where the court is without jurisdiction of the cause, but where it has no constitutional authority or power to condemn the prisoner. As said by Chief Baron Gilbert, in a passage quoted in Ex parte Parks, 93 U. S. 18, 22, 23 L. Ed. 787: Tf the commitment be against law, as being made by one who liad no jurisdiction of the cause, or for a matter for which by law no man ought to be punished, the court are to discharge.’ This was said in reference to -cases which liad gone to conviction and sentence. Lord Hale laid down the same doctrine in almost the same words.. 2 Hale’s Pleas of the Crown, 144. And why should not such a rule prevail in favorem liberlatis? If we have seemed to hold the contrary in any case, it has been from inadvertence. The law could hardly be stated with more categorical accuracy than it is in the opening sentence of Ex parte Wilson, 114 U. S. 417, 420, 5 Sup. Ct. 935, 936, 29 L. Ed. 89, where Mr. Justice Gray, speaking for the court, said; 'It is well settled by a series of decisions that this court, having no jurisdiction of criminal cases by writ of error or appeal, cannot discharge on habeas corpus a person imprisoned under the sentence of a circuit or district court' in a criminal case, unless the sentence exceeds the jurisdiction of that court, or there is no authority to hold him under the sentence.5 This proposition, it is true, 'relates to the power of this court to discharge on habeas corpus persons sentenced by the circuit and district courts; but, with regard to the power of discharging on habeas corpus, it is generally true that, after the conviction and sentence, the writ only lies when the sentence exceeds the jurisdiction of the court, or there is no authority to hold the defendant under it. In the present case the sentence given was beyond the jurisdiction of the court, because it was against an express provision of the Constitution,- which bounds and limits all jurisdiction.”

In the case of Ex parte Bain, 121 U. S., beginning at page 1, 7 Sup. St. 781, 30 L. Ed. 849, a demurrer was interposed to the indictment, and the court permitted the United States attorney to strike out certain words in the indictment, holding that they were surplusage. After conviction, the defendant applied to the Supreme Court of the United States for a writ of habeas corpus,. alleging that the judgment and sentence were void, for the reason that he was tried without a proper indictment. In delivering the opinion the court used the following language;

“It only remains to consider whether this change in the indictment deprived the court of the power of proceeding to try the petitioner and sentence him to the imprisonment provided for in the statute. We have no difficulty in holding that the indictment on which he was tried was no indictment of a grand jury. The decisions which we have already referred to, as well as sound principle, require us to h°ffi that, after the, indictment was changed, it was no longer the indictment of the grand jury who presented it. Any otlier doctrine would place the rights of the citizen which were intended to be protected by the constitutional provision at the mercy or control of the court or prosecuting attorney; for, if it be once held that changes can be made by the consent or the order of the court in the body of the indictment as presented by the grand jury, and the prisoner can be called upon to answer to the indictment, as thus changed, the restriction which the Constitution places upon the power of the court in regard to the prerequisite of an indictment in reality no longer exists. It is of no avail under such circumstances to say that the court still has jurisdiction of the person and of the crime; for, though it has possession of the person, and would have jurisdiction of the crime, if it were properly presented by indictment, the jurisdiction of the offense is gone, and the court has no right to proceed any further in the progress of the case for want of an indictment. If there is nothing before the court which the prisoner, -in the language of the Constitution, can be ‘held to answer/ he is then entitled to be discharged so far as the offense originally presented to the court by the indictment is concerned. The power of the court to ’proceed to try the prisoner is as much arrested as if the indictment had been dismissed or a nolle prosequi had been entered. There was nothing before the court on which it could hear evidence or pronounce sentence. The case comes within the principles laid down by this court in Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872; Ex parte Parks, 93 U. S. 18, 23 L. Ed 787; Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89. and other cases.”

While the rule is settled by the Supreme Court of the United States that a writ of habeas corpus cannot be used to perform the office of a writ of error or appeal, and that the court will not look beyond the judgment and sentence to correct mere errors in law, yet a petitioner will be released on habeas corpus if it appears satisfactorily to the cotyrt that he has, been denied a constitutional right, or that the court has exceeded its jurisdiction.

Brown on Jurisdiction (2d Eel.) § 97, announces the same rule in this language:

‘‘The refusal of the court to grant each of the rights above enumerated, or all of them [referring to rights granted by the Constitution], seems to go to the jurisdiction; and, if the court has jurisdiction to try the action, it seems to lose jurisdiction once acquired by a disobedience of the mandates of the Constitution; or, rather, the trial ceases to be a legal trial by a deviation from this course. Therefore, when any constitutional right or immunity of a,person is violated, the judgment of the court is void.”

Again, in section 110, the author uses the following language :

“The three essential elements necessary to render the conviction valid: These are that the court must have jurisdiction over the subject-matter, the person of the defendant, and authority to render the particular judgment. If either of these elements are lacking, the judgment is fatally defective. Where these elements exists, the judgment of the court is final and conclusive as against the world, and errors in ruling on motions, demurrers, the reception or exclusion of evidence, or in the determination of the facts by the jury cannot be tried or reviewed by the writ of habeas corpus. No court can render a more binding judgment. No court can look behind it. If it be a nullity,' the officer obeying it becomes liable for false imprisonment. The court in" habeas corpus will not look beyond the judgment unless the record discloses some fact that destroys the jurisdiction under the law or that operates directly on the judgment itself.”

The case of State v. Shipman, 93 Mo. 147, 6 S. W. 97, is one where the defendant filed petition for change of venue under a statute very similar to the sections of our statute above quoted. The court overruled the motion, and the Supreme Court in passing-on the question used the following language:

“Upon the making and filing of said affidavits and application the presiding judge has no power or authority to act in the cause, except to make the order contemplated in section 1878. After that his subsequent acts in the case were unauthorized, invalid, and without any binding force, as against this defendant.”

In the case of State v. Wolever, 127 Ind. 306, 26 N. E. 762, in discussing the effect of the judgment after a petition for a change of venue had been overruled, the Supreme Court of Indiana said:

“It must be conceded that, if the necessary steps were all taken to entitle appellant to the change of venue, the action of. the mayor in thereafter, over Ms objection, assuming to retain jurisdiction, and the resulting trial and condemnation, were coram non judice, and void ” — citing a great number of authorities.

In the case of Ex parte Lange, 18 Wall. 166 (21 L. Ed. 872), supra, the court used the following language:

“Disclaiming any assertion of a general power of. review over the judgments .of the inferior courts in criminal eases, by the .use of the writ of habeas corpus or otherwise, we proceed to examine the case as disclosed by the record of the circuit court and the return of the marshal, in whose custody the prisoner is found, to ascertain whether it shows that the court below had any power to render the judgment by which the prisoner is held.”

In the case of Ex parte Siebold. 100 U. S. 371, 25 L. Ed. 717, supra, the court, in discussing the office of the writ of' habeas corpus, used this language:

“It cannot be used as a mere writ of error. Mere error in the judgment or proceedings, under and by virtue .of which a party is imprisoned, constitutes nó ground for the issue of the writ. Hence, upon a return to a habeas corpus that the prisoner is detained under a conviction and sentence by a court having jurisdiction of the cause, the general rule is that he will be instantly remanded. * * * but the general rule is that a conviction and sentence by a court of competent jurisdiction is lawful cau«e of imprisonment, and no relief can be given by habeas corpus. The only ground on which this court or any court without some special statute authorizing it will give relief on habeas corpus to a prisoner under conviction and sentence of another court is the want of jurisdiction in such court over the person or the cause, or some other matter rendering its proceedings void. * * *■ But personal liberty is of so great moment in the eye of the law that the judgment of an inferior court affecting it is not deemed so conclusive, but that, as we have seen, the question of the court’s authority to try and imprison the party may be reviewed on habeas corpus by a. superior court or judge having authority to award the writ.”

Our statute on habeds corpus (section 4856, Wilson’s Rev. & Ann. St. 1903) is as follows:

“Every person restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus to inquire into the cause of the restraint, and shall be delivered therefrom when illegal.”

This section clearly malíes it the duty of this court to discharge the petitioner from imprisonment if the imprisonment is illegal.

¡Section 4867, Wilson’s Rev. & Ann. St. 1903, is as follows:

“No court or judge shall inquire into the legality of any judgment or process, whereby t lie part)'' is in custody, or discharge him when the term of commitment has not expired in either of the eases following: First, upon process issued by any court or judge of the United States, or where such court or judge has exclusive jurisdiction; or, second, upon any process issued, on any final judgment of a court of competent jurisdiction. * * * ”

Construing these two sections together, it (is necessary to determine what is meant by court of “competent” jurisdiction. The first section quoted makes it our duty to release from illegal imprisonment. The last section provides that we capnot release from the final judgment of a court of “competent” jurisdiction. If the words “competent jurisdiction” as used here mean a court that has jurisdiction of a person and subject-matter, then we are precluded from discharging the petitioner in this case. This section was construed by the Supreme Court of the territory of Oklahoma in the ease of In re Patswald, reported in 5 Okla. 789, 50 Pac. 139. The court there held a court of “competent” jurisdiction to be one having power and authority of law at the time of acting to do the particular act. The third syllabus is as follows:

“Habeas Corpus Act — (Construction of. The provisions of the habeas corpus act of this territory (section 4578, St. 1893), excluding from its benefits persons committed or detained by virtue of any process issued on any final judgment of a ‘court of competent jurisdiction/ only applies when the tribunal had jurisdiction to render the particular judgment. A court of ‘competent’ jurisdiction is one having power and authority of law at the time of acting to do the particular act. The prohibition contained in said section, forbidding inquiry into the legality of any process or judgment specified in the provision above referred to, does not take from the court or officer having jurisdiction of the writ the power, or relieve from the duty of determining whether the judgment or process emanated from a court of competent jurisdiction to issue the process or render the judgment.”

Judge Tarsney, speaking- for tlie court, used the following language:

“If the process is valid on its face, it will be.deemed prima facie legal, and the prisoner must assume the burden of impeaching its validity by showing a want of jurisdiction. Error, irregularity, or tvant .of form is no objection; nor is any defect Avhich may be amended or remedied by the court from which it issued. If there Avas no legal power to render the judgment or decree, or issue the process, there was no competent court, and consequently no judgment or process. All is coram non judice and void. People v. McLeod, 3 Hill (N. Y.) 659, 661, 665 and note; In re Newton, 16 C. B. 97.
“When a prisoner is held under a judgment of a court made without authority of kw, the proper tribunal Avill, upon habeas corpus, look into the record so far as to ascertain this fact, and, if it be found to be so, will discharge the prisoner; and it is no ansAArer to say that the court had jurisdiction of the person and of the offense. It by no means folloAvs that these íavo facts make valid, however erroneous it inay be, any judgment the court may render in such a case. Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872. A proceeding defective for irregularity and one void for illegality may be reversed upon error or certiorari; but it is the latter defect only which giA^es authoritj' to discharge on habeas corpus. Hurd on Habeas Corpus, 333. Illegality is properly predicable of radical defects only, and signifies that which is contrary to the principles of laAv- as distinguished from*mere rules of procedure. Tidd’s Practice, 435. The inquiry is necessarily in every cáse whether the process is void, and the officer or court having jurisdiction of the Avrit must pass upon it. If a process, good, in form, issued upon a judgment of a court having jurisdiction, either general or limited, must in all cases be'assumed to be valid until the judgment be reversed upon error, the remedy by habeas corpus will be but of little value. People ex rel. Tweed v. Lipscomb, 60 N. Y. 559, 19 Am. Rep. 211. It matters not what the general powers and jurisdiction of a court may be, if it acts without authority in the particular case its judgments and orders are mere nullities — not voidable, but simply void — protecting no one acting under them, and constituting no hindrance to the prosecution of any right. Elliott v. Peirsol, 1 Pet. 328, 7 L. Ed. 164.
“There is no question but that at the common laAv and in the absence of a statute illegalities Avhich make void a judgment in a criminal action, no -matter by what court such judgment may have been rendered, may be inquired into on habeas corpus, and, if. the judgment is found to be void, the prisoner may. be discharged. Does our statute change this rule of the common law, and take away this right of inquiry? If such were the intended effect of the statute, our answer would be: The power is not in the Legislature to take away this right. Relief from illegal imprisonment by means of this remedial writ is not the creature of any statute. The right to be discharged from illegal imprisonment is not derived from the famous statute of Charles II of England (31 Car. II, c. 2), nor from the later act of 56 Geo. Ill, nor from any statute of this territory. It was in use before Magna Gharta, and came to us an inheritance from the mother country, and exists as a part of the common law of this territory, and it is made a part of our Constitution that no person shall be deprived of his liberty ‘without due process of law.’ Const. Amend, art’. 5.
“This writ cannot be abrogated or its efficiency curtailed by-legislative action. Cases within the relief afforded by it at common law cannot, until the people voluntarily surrender the right to this, the greatest of all writs,- by an amendment of the organic law, be placed beyond its reach and remedial action. Its privileges cannot be even temporarily suspended except-.for the safety of the state-in cases of rebellion and invasion. Const. art. 1, § 9. That provision of the- Constitution is a guaranty that the right of the writ of habeas corpus should-remain as it existed at the common law, and should not be curtailed by legislative enactment or by subtle and metaphysical judicial interpretation, and Legislatures can no more prevent its application to cases where it would have been applicable at common law than they can abrogate the right of trial by jury. Nor-do we think that it was intended by our Legislature to curtail the privileges of this writ. Many of the states of the Union have statutes substantially if not identically like ours, and in none of these states save one, as we are advised, has the • construction contended for by counsel for respondent in this case been placed upon such statute. New York, Missouri,- and Kansas have statutes identical with ours. In Kansas and Missouri, notwithstanding the statute, it is held that, where a prisoner has been committed-by a court having absolutely no jur-diction, the validity of the commitment may be inquired into. In re Petty, 22 Kan. 477; Ex parte Snyder, 64 Mo. 58. In New York -it is held that the statute is in harmony with the common law, and takes away no right or jurisdiction to inquire if the judgment is void-. People ex rel. Tweed v. Lipscomb, 60 N Y. 559, 19 Am. Rep. 211.”

We think tin's is the proper construction of this statute, and that we not only have the power, but it is our duty, to discharge the petitioner where the imprisonment is illegal. And following the rule as announced by the Supreme Court of the United States in Ex parte Bain, 121 U. S. 1, 7 Sup. Ct. 781, 30 L. Ed. 849, and Ex parte Hans Nielsen, 131 U S. 176, 9 Sup. Ct. 672, 33 L. Ed. 118, supra, we are driven to the conclusion that the' judgment of the court in sentencing the petitioner to imprisonment for life was void, for the reason that he' had been'denied the right of change of venue vouchsafed to him in the Organic Act of the territory of Oklahoma, and that Ms imprisonment is therefore illegal.

It is therefore ordered that the petitioner be discharged from said judgment and commitment, and that be be remanded'to tire custody of the sheriff of Kay county, Oída., and that a mandate issue to the district court of Kay county, directing it to proceed with the ease in accordance with the views herein expressed.

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


source: Caselaw Access Project

author: DOYLE, Judge.

license: Public Domain

text:
    Shorty Burgess v. State.
    No. 106.
    Opinion Filed October 25, 1909.
    (104 Pac. 916.)
    APPEAL AND ERROR — Dismissal. In a criminal cause, where the defendant appeals from a judgment of conviction, and no briefs are filed or oral argument made, and where a dismissal of said appeal is filed by counsel of defendant, this court will not examine the record as presented, but will make an order dismissing the appeal, with direction to enforce the judgment and sentence,
    (Syllabus by the Court.)

      Appeal from Grady County Court; N. M. Williams, Judge.

      Shorty Burgess was convicted of violating the prohibition ■law, and appeals.
    Dismissed.

      F. E. Riddle, for plaintiff in error.

      B. B. Barefoot, -Co. Atty., for the State.
   DOYLE, Judge.

The plaintiff in error, Shorty Burgess, was informed against, tried, and convicted, in the county court of Grady county, for the crime of' unlawfully selling intoxicating liquors, and was on the 28th day of October, 1908, sentenced to pay a fine of $250 and costs, and be confined in the county jail of Grady county for a jieriod of 30 days at hard labor, from which judgment and sentence plaintiff in error appealed to the Criminal Court of Appeals, by filing on March 1, 1909, with the clerk o£ this court, his petition in error and case-made.

No briefs have been, filed, and we are not advised as to what plaintiff in error complains of or relies upon for a reversal of said judgment. On October 21, 1909, there was filed with the clerk of this court a dismissal of said appeal by F. E. Riddle, as attorney for plaintiff in error. In cases of this kind, where motion to dismiss the appeal has been filed on the part of the plaintiff in error, we do not consider it the dutjr of this court to go into an examination of the record as presented to determine whether or. nqt the trial court erred in the trial of the cause.

It is therefore ordered that the appeal in the above-entitled cause be, and the same is-hereby dismissed. The clerk of this court will issue a mandate to the county court of Grady county, directing said county court to cause the judgment and sentence to - be enforced.

FURMAN, Presiding Judge, and OWEN, Judge, concur.


author: FURMAN, Presiding Judge. PER CURIAM.

text:
    C. B. Cox et al. v. State.
    No. 249.
    Opinion Filed November 2, 1909.
    (104 Pac. 1074.)
    1. INDICTMENT AND INFORMATION — Sufficiency—Caption, (a) No indictment or information is insufficient by reason of a defect or imperfection in the matter of form which does not tend to prejudice the substantial rights of the defendant uporl the merits.
    (b) While it is best for an information to have a caption, yet its absence or errors in it are not fatal to the information.
    2. APPEAL — Review—Briefs—Requisites and Sufficiency. Upon appeal the brief must state the precise error complained of, and enough of the record to enable this court to understand the question presented, and also state the page of the record upon which matter complained of will be found, and must also clearly state the argument, and cite the authorities relied upon, or any supposed errors will be treated as waived, unless they are fundamental.
    3. EVIDENCE — Materiality—Judicial Notice — Beer . Intoxicating. (a) Objections should be sustained to all questions, the answers to which could not affect the matter at issue.
    (b) The court will take judicial knowledge of the fact that beer is intoxicating, and its sale is prohibited under our Constitution and statutes.
    4. PARTIES TO OFFENSES — Intoxicating Liquors — Persons Responsible — Agency—“Principals.” (a) The civil law of agency has no application to violations of criminal law.
    (b) All persons who are concerned in the commission of an offense are “principals,” and should be prosecuted and convicted as such, and it is immaterial as to whether they are present when the crime is actually committed.
    (c) Where a person is the proprietor of a joint, and keeps beer and whisky there, and has a United States license to pursue the business of selling liquor, he cannot escape responsibility for a sale made by his barkeeper upon the ground that he was not present when the sale was made.
    5. INDICTMENT AND INFORMATION — Verification—Sufficiency. (a) For a properly verified information for selling intoxicating liquors, see opinion.
    (Syllabus by the Court.)

      Appeal from District Court, Rogers County; Archibald Bonds, Judge.

    C. B. Cox and others were convicted'of an unlawful sale of intoxicating liquor, and they appeal.
    Affirmed.

      H. Tom Right, for appellants.
   FURMAN, Presiding Judge.

1. In the motion for a new-trial the sufficiency of the information is challenged. The information is as follows:

“In the District Court within and for Rogers County,- State of Oklahoma, Second Judicial District. Before Hon.
T. L. Brown, Judge.
“State of Oklahoma, Plaintiff, v. Tom Smith and B. C. Cox and John Thurman, Defendants. Information.
“Be it remembered that Wm. M. Hall, county attorney in and for Rogers county, state of Oklahoma, who prosecutes in the name and by the authority of the state of Oklahoma, comes.herein in person into the county court of said county this 1st day of February, 1908, and upon the affidavit of Wm. McClain, duly subscribed and sworn to by him as provided by law, and the same is hereto attached, marked ‘Exhibit A,’ and made a part hereof, gives the court to understand and be informed that on the 23d day of January, A. D. 1908, in Rogers county, state of Oklahoma, and one B. C. Cox, Tom Smith, and John Thurman, late of said county, and within the jurisdiction of this court then and there being, did then and there wilfully, unlawfully, sell one pint of intoxicating liquor to Dave Coker contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma. Wm. M. Hall,
“County Attorney, Rogers County.
“State of Oklahoma. County, of' Rogers — ss.:
“Personally appeared before me, Archibald Bonds, judge of the county court within and for the county of Rogers, .state of Oklahoma, W. M. Hall, of lawful age, who, being first duly sworn upon his oath, states that he is the county attorney of said county, that he has read the foregoing information and knows the contents thereof, and, that the facts and allegations therein contained-are true. W. M. Rall:
“Subscribed and sworn to before me this 1st day of Feb., 1908. Archibald Bonds,' ’
“County Judge.
“State of Oklahoma, County of Rogers—
“I, W. M. McClain, after being first duly sworn, deposes and says that my name is W. M. McClain. I live in Claremore, Okla. I am 37 years of age. On last Friday a week ago, on or about January 23, 1908, I, in company with Dave Coker, went into the place of business of Smith and Cox on Third street in the town of. Claremore, Okla., and I saw Dave Coker buy of John Thurman, an employee of Smith & Cox, one pint of what I took to be whisky, for which he paid him $1. We afterwards divided the contents of the bottle, and I took my half home as a medicine for my family. I told Coker that I wanted some good whisky, and we would go up to Cox’s to get it, and 1 saw him pay John Thurman for the same, and saw Thurman give him the bottle. Dave Matthews was present at the time, and others whose names I do not now recall. The contents of the bottle I did not taste, but it looked like whisky and smelled like whisky, and I bought it for whisky, or rather had Dave Coker buy it for me for whisky. I gave Dave Coker a half dollar, and I saw Thurman take something and pass it along under the counter, and I saw Coker make the motion as if to pay for the same. Wm. .McClain.
“Subscribed and sworn to before me this 1st day of February, 1908. Leu Settle,
“Clerk of the District Court.”

It is firsi vjlaimed that the information upon its face discloses the fact that it was presented in the district • court of Rogers county, before Son. T. L. Brown, judge, and that the record does not show that it had ever been transferred to the county court. Counsel for the defendant rely' upon the first paragraph o.f section 5357,, Wilson’s Rev. & Ann. St. 1903, to sustain their contention, which is as follows:

“The indictment must contain: First. The title of the action, specifying the name of the court to which the indictment is presented, and the name of the parties.”

The second section of section 5365, Wilson’s Okla. St., is as follows:

“The indictment is sufficient if it can be understood therefrom: First.-That it is entitled in a court having authority to receive it, though the name of the court is not stated.”

Section 5366, Wilson’s Okla. St., is as follows:

“No indictment is insufficient, nor can the trial judgment, or other proceedings thereon he affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

So we see that by the, express language of the statute the omission of any matter of form from an indictment, which does not tend to the prejudice of the substantial rights of a defendant upon the merits, does not affect the sufficiency of an indictment. It is best to have a correct caption to an indictment or information, but it does not add to or take from the charging part of the indictment or information. Its presence neither gives to the defendant any additional rights, nor does its absence impose any additional burdens upon him. If it appears that the indictment is filed in a court having jurisdiction of the offense charged, the purpose of the law has been accomplished. The caption of the information now before us is no part of the information itself. There is nothing except this caption to indicate that this information was ever filed in the district court of Eogers county. This was simply a clerical error on the part of the 'county attorney. The record shows that the information was filed and presented in the county court, which had jurisdiction of the offense charged. This was sufficient.

2. The second assignment of error is as follows:

“That the court erred in admitting testimony on the part of the defendant in error, as shown by the transcript filed herewith.”

The brief does not present any questions asked or answer thereto under this assignment. It is the duty of counsel, when they bring a case to this court for review, to state in their brief the precise error complained of, and to correctly copy in the brief enough of the record to enable this court to understand the question presented. Theyr should also give the page of the transcript upon which the matter complained of will be found. This court is too busy to undertake to hunt through haystacks for needles. The brief should also clearly present their arguments and cite the authorities relied upon. Not a single question asked by counsel for the state or answer thereto, is presented under this assignment, and no motion is made of any exceptions to any such question or answer. No argument is made, and no authorities are cited. If any errors were committed by the court in the admission of evidence against the defendant, they are therefore waived.

3. The third assignment of error is as follows:

“The court erred in ruling out and excluding competent and legal evidence on the part of the plaintiff in error, as shown by the transcript filed herewith.”

The brief complains of only one ruling of the court in exclusion of evidence. When the defendant was on the stand testifying in his own behalf, his counsel asked him the following question:

“You said some time last summer you took out wholesale license for selling a ear load of TJno; state whether TJno is the same as this, except that they have different labels, and if the same people make it.”

This question was objected to by the county attorney, and the objection was sustained and the defendant reserved an exception. In the brief for the defendant it is said:

“We submit that the court erred in refusing to admit this testimony for the reason that the defendant in error had gone into the question as to whether or not TJno and Rochester were intoxicating beverages, and it was proper for the defendant to rebut this testimony and show that TJno and Rochester were not intoxicating, and that they contained the same amount of alcohol, even though labeled with different labels.”

The testimony in connection with which this question was asked is as follows:

“What is your name? R. C. Cox. One of the firm of Cox & Smith, are you? Yes. What business are you engaged in? Pool hall and cigar stand. Do you sell any kind of drinks up there? Yes, sir. What do you sell? TJno, soda water. Any Rochester? No, sir. Here are some wholesale liquor licenses; do you know anything about them? Yes, sir.. When did you get them? When? About two months ago. Where did you buy your stuff from? J. B. Quigley. Kansas City? Yes, sir. State whether or not the stuff you bought from Quigley was intoxicaf-ing. (Objected. Sustained.) I will ask you to state whether or not you sought the advice of a certain lawyer or agent as to whether this Uno was intoxicating? (Objected. -Overruled.) State whether or not j^ou sought the advice of a certain lawyer as to whether the car load of Uno bought through Quigley from Kansas City was intoxicating or not, and on which you acted, on their advice. Yes, sir. You say you got a license for that; what did you get it for? Did you get it on your own notion? . (Objected.) How came you to get these licenses? They asked me to get them. Who did? The lawyer and Mr. Quigley. They were sent in mistake of the license; I ordered wholesale malt liquor and retail malt liquor licenses. Do you drink intoxicating drinks? Yes, sir. State whether or not you have drank any Boehester exhibited as such, and whether it is intoxicating or not. (Objected to. Overruled.) State whether or not, Mr. Cox, what I have in my hand is a part of the same as taken by the sheriff, Mr. Stephens, is intoxicating. (Objected to, as it shows it is a beer.) ■ This drink is labeled Boehester, a mild beer, brewed and bottled by the Boehester Brewing Co., Kansas City, Mo. This stuff was taken from your building by the sheriff was it not? Yes, sir. And was indorsed by the sheriff as stuff taken from your 'building when arrested? Yes, sir. State whether or not the same is intoxicating or not. (Objected to. Overruled.) ' I don’t think it was intoxicating; if so, I would not have sold it. State whether or not to drink in a reasonable quantity, a man would become intoxicated. No, sir.”

It will be observed that the offense is alleged to have' been committed prior to the passage of the enforcement act. The question presented must therefore be determined under the provisions of the Constitution. Section 9, Bunn’s Const. Okla., among other things, provides:

“Any person, individual or corporate, who shall manufacture, sell, barter, give away, or otherwise furnish any intoxicating liquor of any kind, including beer, ale, and wine, contrary to the provisions of this section, or who shall, within the above-described portions of the state, advertise for sale or solicit the purchase of any such liquors, or who shall ship or in any way convey such liquors from other parts of the state into the portions hereinbe-fore described, shall be punished, on conviction thereof, by fine not less than fifty dollars and by imprisonment not less than thirty days for each offense.”

• This provision makes the sale of any kind of intoxicating liquors unlawful, and included beer, ale, and wine in the prohibited liquors. It was as much an offense under this provision of the Constitution to sell beer, ale, and' wine as it was to sell whisky or brandy. The defendant’s own testimony establishes the fact that he had received a car load of beer about two months before the trial. The trial began on the 7th day of February, 1908. This was nearly three months after the incoming of statehood. So he had received this beer about three weeks after the Constitution went into effect, and before the. date of the offense charged. The record shows that at the time of the alleged commission of this offense the defendant had at his place of business a United States internal revenue license to pursue the business of retail liquor dealer at Claremore, in Itogers county, and that he also had at his place of business a United States-revenue license to pursue the business of wholesale dealer in malt liquors at Clare-more. When the arrest was made in this case something like two barrels of beer and some whisky was found in his place of business. Under these .facts and the provisions of the Constitution any answer which could have been made to the question asked would have been immaterial, and the court therefore did not érr in sustaining the objection thereto.

4. Defendant further complains in his brief as follows:

“That the verdict was contrary to the law and evidence as shown by the record, for the reason that the evidence of the state did not show that this defendant B. C. Cox ever sold a pint of whisky to Dave Coker, nor does it show that John Thurman, who was acting as agent for B. C. Cox, ever sold a pint of whisky to Dave Coker, nor does the evidence show that there was a pint of whisky ever sold, añd even if a pint of whisky had been obi tained by Dave Coker in the pool hall of B. C. Cox, it does not show that John Thurman, in acting as agent for-B. C. Cox, manifested the guilty intention of accepting the $1 alleged by Coker to be 'due the house’ from him, but at the time Dave Coker paid John Thurman $1, Thurman asked Coker what it was for; and he said to him that he 'owed the house $1’; that- at the time Thurman received and accepted this $1 he neither knew what it was for beyond a debt owing to the house,-nor -did he have any knowledge of Coker ever obtaining a bottle off the shelf in said house.”

This calls for a review of the testimony. The record shows conclusively that the witnesses as to the sale of the whisky were exceedingly unwilling, and that they did all in their power to screen and protect the defendant, and were clearly biased in his favor. Far from weakening the effect of their testimony, this increased its force and weight. The testimony of the ready and anxious witness may well be questioned on account of his anxiety to remember something against a defendant, while, upon the other hand, a manifest attempt to forget and favor a defendant may cause a jury to attach great importance to admissions which may be drawn from him. The evidence discloses that the following facts were reluctantly drawn from the witnesses against the defendants: The defendant Cox was engaged in the business of running a pool hall and joint in Claremore, and the defendant Thurman was attending the bar for Cox, and the bar was furnished as such places usually are. Cox had a United States liquor license to pursue the retail liquor business. The windows of the room were frosted so that no-one could see through them. There was a blind or screen concealing the bar from the door. About two barrels of beer and some whisky were found in the place when the arrest was made. About the date of the alleged offense Mr. McClain and Dave Coker went into the bar. McClain had given Coker money to purchase whisky. C'oker went behind the bar and spoke to Thurman. Coker picked up a bottle of whisky inside the counter, and gave Thurman a dollar, and said: “I owe the house,” and McClain and Coker went out and divided the whisky. On being asked if he. did owe the house anything Coker said he did not know whether he did or not. It was evident .that these witnesses were most reluctant, and did all .in their power to protect the defendant. In the. light of the facts in the case the jury were fully warranted in finding that there was a sale of the whisky by Thurman to Coker, and that the claim that Coker was simply paying the house a debt was a subterfuge for the purpose of concealing the sale.- No intelligent and honest jury should allow themselves to be imposed upon by any such device as this. It is child’s play for Cox to attempt to escape responsibility for the act of Thurman in selling whisky to Coker. The frosted windows and screens before the bar, and the United States liquor license, and the general furnishings of the bar, and the fact that whisky and beer were found in the joint, conclusively proves the purpose for which it was kept. The facts were all admissible in evidence as a part of the res gestae of the offense to prove the character of the joint and the purpose for which it was being kept. Thurman was simply a barkeeper for Cox. The act of Thurman was the act of Cox, whether Cox was present or not when the sale was made, because the evidence shows that they were acting together in violating the law. No man can screen himself behind the civil law of agency in the commission of crime.

All persons who are concerned in the commission of an offense, whether they directly commit it or aid or abet in its commission, though not present when it is committed, are principals, and should be prosecuted and convicted as such. The evidence amply sustained the verdict, and the court did not err in overruling the motion for a new trial on this ground;

5. It is objected that the information is not properly verified. Upon an examination of the cases of Flowers v. State, 2 Okla. Cr. 430, 101 Pac. 860; Salter v. State, 2 Okla. Cr. 464, 102 Pac. 719, and De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 538, it will be found that the verification is strictly in harmony with these cases.

6. One of the grounds relied upon for a new trial is that all of the instructions to the jury were not' in writing. An examination of the record does not sustain this contention. If any oral instructions were given, that fact does not appear in' the record, and no exceptions were reserved thereto.

The defendants were properly proceeded against by information, and were fairly tried. The evidence sustains the verdict. The judgment of conviction is therefore affirmed.

DOYLE and OWEN, Judges, concur.

Opinion Piled December- 7, 1909.

(105 Pac. 369.)

APPEAL — Petition for Rehearing — Requisites and Sufficiency. A petition for a rehearing based upon the ground that a controlling decision which was not called to the attention of the courts is in conflict with the decision of which a rehearing' is sought must show that such conflict exists.

(Syllabus by the Court.)

On motion for rehearing.

Motion denied.

Elliott & Howard, for appellant.

ON PETITION FOR REHEARING.

No. 249.

PER CURIAM.

Rule 9 of this court (1 Okla. Cr. ix, 101 Pac. ix) governs applications for a rehearing. It is as follows:

“(1) Application for a rehearing in any cause, unless otherwise ordered by the court, shall be made by a petition to the court signed by counsel and filed with the clerk within fifteen days from the date on which the opinion in the cause is filed. Such petition shall briefly state the grounds upon which counsel relies for a rehearing, and show either that some question decisive of the case and duly submitted by the counsel has been overlooked by the court, or that the decision is in conflict with an express statute or controlling decision, to which the attention of the court was not called, either in brief or oral argument, or which has been overlooked by the court, and the question, statute, or decision so overlooked must be distinctly and particularly set forth in the petition. If such application is granted, the cause shall be assigned for rehearing, and the clerk shall notify both parties or their counsel of the time when such will be had, and such time may be given for argument or brief as the court shall allow/’

The petition for a rehearing is as follows:

“Comes now B. C. Cox, the appellant in the above-entitled cause, and most respectfully shows the court: That on the 2d day of November, 1909, a decree and judgment was rendered by this honorable court against this appellant, affirming a judgment and sentence of the county court of Rogers county, Okla., wherein i ho said county judge of Rogers county did on the 9th day of March, 1908, duly sentence this appellant to. 60 days’ imprisonment in the county jail of Rogers county, and to pay a fine of $400 upon a charge of the unlawful sale of intoxicating liquors charged to have been sold on or 'about January 23, 1908, in Rogers county, Okla. (1) That said decision affirming the judgment and sentence of the county court of Rogers county against this appellant overlooked the decision of this honorable court in the ease of Titsworth v. State, 2 Okla. Cr. 268, 101 Pac. 288, which said case is controlling in this case, and wherein this honorable court lays down the following rule: It is the present opinion of the writer that in eases against defendants for keeping intoxicating liquors for sale the general reputation of such places, in the community in which they are situated, touching this point, is admissible in evidence, just as it is permissible to prove a general reputation of a bawdyhouse, -a gambling house, or of any place which constitutes a nuisance. Section 14, art. 3, of the enforcement act (page 608, c. 69, Sess. Laws 1907-08), expressly makes such places where liquors of any kind are sold, manufactured, bartered, or given away or otherwise disposed of in violation of the law nuisances. This, however, would not be-true in cases in which the defendant was charged with a specific sale of such liquors. Such evidence would only be admissible where the defendant was charged with keeping liquors for sale at a certain place. (2) That the court in affirming said judgment and sentence against this appellant overlooked the rule as laid down by this honorable court in the case of Sturgis v. State, 2 Okla. Cr. 262, 102 Pac. 57, which case is almost identical with the case of appellant, and the decision of which case is controlling in this case, and the rule being laid by the court as follows: "The safe rule is to require some evidence of such acting together before such acts and declarations of others concerned in the commission of an offense are admitted in evidence when such acts were not committed or statements were not made in the presence of the defendant. Under these rules of law, the question now presents itself as to whether there is in the record any evidence that the defendant was concerned with the Holmes and McKinley in the sale of intoxicating liquor, except the testimony as to the statements of Holmes and McKinley to the witnesses who testified to such statements. * * * There is not one word of evidence in this record except hearsay which proves, or tends to prove, that the defendant was concerned with. Holmes or McKinley in the sale of intoxicating liquors.’ Page 66, 102 Pac. (3) That the court in affirming said judgment and sentence against this appellant overlooked the rule laid down by this honorable court in the case of State v. Mash, 2 Okla. Cr. 283, 101 Pac; 293, where the court lays down this rule: ‘Upon the trial for the offense of having possession of intoxicating liquors with the intention of violating the provisions ¡of the prohibition law, where no positive testimony tending to show such possession was offered to show possesson purely circumstantial and did not show actual or constructive possession of such liquors as charged, held, that the evidence is insufficient to sustain the conviction.’ (4) That the court in affirming the judgment and sentence in the case against this appellant overlooked the rule as laid down by this court in the case of Lightle v. State, 2 Okla. Cr. 334, 101 Pac. 608, wherein the court lays down the following rule governing the introduction of evidence, which rule is controlling in this case; said rule being as follows: ‘Before liquor can be offered in evidence for the inspection of the jury, -such liquor must be identified as having been in the possession and having been unlawfully disposed of by the defendant.’ The appellant further states to the court that the above decision as well as many other casefe decided by this honorable court relative to the violation of the prohibition provisions of the Constitution and laws of the state of Oklahoma have been handed down by the court since the brief of the appellant was filed with this honorable court, and the decisions therefore could not have been cited to the court in said brief. Wherefore j^our petitioner, said appellant, prays the honorable court to grant a rehearing in said cause, and that said cause may be reheard by this honorable court. Respectfully submitted. Elliott & Howard, Attorneys for appellant.”

While a number of the decisions of this court are quoted from in the petition for a rehearing, which it is claimed were overlooked by this court, yet it is not alleged in .a single instance that there is any conflict between the quotations made and any portion of the decision of the -court in this case. In fact, no attempt is made to show any such conflict. In failing to show or attempt to show such conflict the petition is not in compliance with rule 9, and is therefore clearly insufficient, and fails to present anything for the consideration of this court.

Rehearing denied.


text:
    Chock Pulliam v. State.
    No. 161.
    Opinion Filed November 3, 1909.
    (104 Pac. 919.)
    APPEAL — Record—Review—Absence of Briefs. In a criminal cause, where the defendant appeals from a judgment of conviction, and no briefs are filed or oral argument made, this court- will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and, it no prejudicial error appears, will affirm the judgment.
    (Syllabus by the Court.)

      Appeal from Goal County Court; R. H. Wells, Judge.

    Chock Pulliam was convicted of crime, and lie appeals.
    Affirmed.
    . Charles West} Atty. Gen., and Charles L. Moore, Asst. Atty. Gen, for the State.
   DOYLE, Judge.

The plaintiff in error, Chock Pulliam, was tried and convicted in the justice court of Jesse Bunch, a justice of the peace in and for township No. 2, Coal county, for the offense of petit larceny. He thereupon appealed to the county court of Coal county. Upon the trial in the county court the jury returned a verdict of guilty, and assessed his punishment at a fine of $50 and 30 days in the county jail. Motions for new trial and in arrest of judgment were, filed and overruled, and exceptions allowed. Judgment and sentence pursuant to the verdict was entered on March 11, 1908. On April 24, 1908, the defendant filed his petition in error and case-made in the Supreme Court, and said cause was duly transferred to the Criminal Court of Appeal as provided by law.

On September 15, 1909, the Attorney General filed a motion to dismiss the appeal or affirm the cause, for the reason, among others, “that no briefs on behalf of the plaintiff in error have ever been served or filed herein, or time asked or granted for an extension of time for filing the same.” Said cause was assigned for hearing upon said motion on November 2, 1909, at which time there was no appearance on the part of the plaintiff in error. Rule 4, par. 4, of this court, (1 Okla. Cr. viii, 101 Pac. viii) provides:

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence and if no prejudicial error appears will affirm the judgment.”

No briefs have been filed, and we are not advised what the plaintiff in error complains of, or relies upon for a reversal. We have carefully examined the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and we have discovered no error which will warrant a reversal of the judgment.

Wherefore the judgment of the county court of Coal county is in all things affirmed, at the costs of the plaintiff in error, and the county court of Coal county is directed to proceed and have the judgment and sentence carried into execution.

FURMAN, PRESIDING Judge, and OWEN, Judge, concur.


author: OWEN, Judge

text:
      Ex parte Lyda Howland.
    No. A-250.
    Opinion Filed November 5, 1909.
    (104 Pac. 927.)
    1. JUDGMENT — Nunc P'ro Tunc. Where a defendant is tried convicted, and sentenced to imprisonment, tout by error of the clerk the judgment is not entered on the records of the court, the error may be corrected at any time by an order nunc pro tunc.
    2 COURTS — Records—Correction—“Pending.” A criminal case is "pending” in the sense that a court may correct its records, until the judgment is fully satisfied.
    3. COURTS — Records—Correction—Effect of Statehood. The district court of the state is the legal successor of the territorial district court for the purpose of correcting the record of a judgment rendered by the territorial court in an action pending at the time of admission of the territory to statehood.

      4. STATUTES — Time of Taking Effect — Criminal Procedure Act. The criminal procedure act of the territory of Oklahoma was in full force and effect April 11, 1902.
    (Syllabus by the Court.1
    Original application for habeas corpus by Lyda Howland.
    Application denied, and petitioner remanded to custody.
    The relator, Lyda Howland, filed her petition in this court on July 13, 1909, alleging that she is restrained in the state penitentiary by virtue of an alleged commitment, purporting to come from the district court of Lincoln count}', Okla. T., March term, 1902, and that such restraint is illegal for the reason “there is no judgment roll of record against her in the records of said district court of Lincoln county.” The writ was issued returnable on the 7th day of September, 1909. The warden of the state penitentiary made his return on said writ, stating that, he restrained the relator, Lyda Howland, as a convict under life sentence and imprisonment for murder, under and by virtue of a judgment and sentence in the district court of Lincoln county, territory of Oklahoma, rendered on the 11th day of April, 1902, and attached a copy of said order and sentence as an exhibit to his return. The respondent further answering, says that since the issuance and service of the writ in this case a certified copy of the judgment of the district court of Lincoln county has been placed in his hands, a copy of which is attached to his return, showing that an order was made by the district court of Lincoln county, state ■ of Oklahoma, on August 10, 1909, entering of record the judgment and sentence made against the relator on the 11th day of April, 1902, nunc pro tunc. The return, together with a certified copy of the order, nunc pro tunc, was filed in this court on August 12, 1909. On September 8, 1909, the relator filed an amendment to her original petition, alleging that “The alleged judgment and sentence recorded by an order nunc pro tunc and now made a part of the return, thus to change the issues as joined in this case, is an ex post facto judgment, and cannot affect the right of this petitioner to an unqualified discharge from imprisonment,” and also alleged that the “pretended Code of Criminal Procedure under which petitioner is alleged to have been tried was not a law of Oklahoma Territory at the time of the alleged trial, and all action thereunder is void.”

      I. N. Terrill and Bessey & Gray, for relator.

      Chas. West, Atty Gen., and Olías. L. Moore, Asst. Atty. Gen., for respondent.
    — On validity of Criminal Procedure Act: In re, Thomas P Queenan (an unreported Oklahoma case decided October 9, 1901). On correction of the record by nunc pro tunc order: Ex parte Bide Ooolc, 2 Okla. Cr. 684; Bunn’s Okla. Const. §§ 544, 477, 476; Higgins v. Brown, 20 Okla. 355; Mauney v. Pemberton, 75 N. C. 219; 6 Words and Phrases, p. 5277, word “pending,” and cases cited; TJ. S. v. Taylor, 44 Fed. 2.
   OWEN, Judge

(after stating the facts as above). There is no contention in this case that a judgment was not rendered against the petitioner. The contention is, as appears in the original petition, that at the time the petition was filed in this case there was no “judgment roll of record against the petitioner.” It appears from the record that after the original petition was filed in this court, the Attorney General and J. B. A. Robertson, former county attorney of Lincoln county, filed with the district court of Lincoln county a petition asking for an order nunc pro tunc, correcting the record in the case of Territory of Oklahoma v. Lyda Howland. That petition was heard on the 10th day of August, 1909. The relator here, Lyda Howland, being present in person and by counsel, the district court heard the testimony, and found as a fact that the relator, Lyda Howland, was tried and convicted in the district court of Lincoln county, territory of Oklahoma, March term, 1902, and on the 11th day of April, 1902, was sentenced to imprisonment in the territorial prison at hard labor for life, and that by inadvertence of the clerk of the district court the judgment and sentence of the court was not entered on the records in said court in the manner provided by law; and, after hearing the testimony and finding as a fact that said judgment was rendered and the defendant sentenced on the 11th day of April, 1902, the court did, on August 10, 1909, order that the judgment as pronoúnced in that court on the 11th day of April, 1902, be entered nunc pro tunc.

Counsel for relator, in the brief filed in this case and in the oral argument, insist that the court was without authority to enter the order nunc pro tunc; that such an order could not be entered, for the reason that it would be “an ex post facto judgment, and affect the right of this petitioner.” The power of making an entry, mine pro tunc seems to have been possessed and exercised by courts of law and in equity from the earliest times. The period through which this right could be successfully invoked has never been limited. The power has been confined to those eases in which some hardship would be visited upon one of the parties without any fault of his, unless the judgment was entered. The power to enter judgments and orders nunc pro tunc is inherent in the courts, both at law and in equity, and is not dependent for its existence upon any statute. It is a power which courts have and liberally exercise to make their records speak the truth; and, if a clerk has omitted to make an entry, whether before or after final judgment,' the court may require him to supply this omission m-unc pro tunc. When the entry is amended, it is nothing more than perfected evidence of what, in contemplation of law; existed from the time the judgment was' rendered, and this amended judgment should be given effect as if no error had occurred in the original entry. There might be conditions, of course, under which judgments nunc pro tunc should not be entered; for instance, if the rights of individuals would be prejudiced, or where the conditions of persons had been changed by reason of their relying on a judgment as originally entered. But no such condition arises here. In this instance it appears from the records, and from the findings of the district court of Lincoln county, that the relator was tried and convicted in the district court of Lincoln county, territory of Oklahoma, and was sentenced to serve the term of her natural life in the territorial penitentiary at hard labor. It cannot be said that she was deprived of any right by the inadvertence of the clerk to record the judgment of the court. The state had a right to have the judgment of the court entered of record. The entering of the judgment nunc pro time could not possibly work a hardship on the relator. It in no way affects the term of her imprisonment, or changes her relation to society. The state bad a perfect right to have the evidence of her conviction and sentence perpetuated, and the judgment nunc pro tunc does no more than this. Courts have a continuing power over their records not affected by the lapse of time. Should the record in any case be lost or destroyed, the court whose record it was possesses the undoubted power, at any time afterwards, to make a new record.

The amendment to the original petition also alleges that the “alleged judgment and sentence recorded by an order nunc pro tunc, and now made a part of the return, thus to change the issues as joined in this case, is false, untrue, and is set up in the return for fraudulent purposes.” There is no contention made by counsel for relator that the findings of the court, on which the nunc pro tunc order is based, were made without legal evdence. There beng no contenton of that kind, the presumption prevails that the court acted on sufficient competent testimony. It is not for this court to question the evidence on which the district court of Lincoln county made this order nunc pro tunc. The court on the evidence there introduced found, as a fact that the judgment and sentence was entered on the 11th day of April, 1902, and that finding is conclusive on this court. The court having found that it was a mere error of the clerk, and it being clearly within the province of -the court to correct such error, and the corection having been made, the order stands as originally made and intended, and must be given effect accordingly. 1 Freeman on Judgments, 71; Bobo v. State, 40 Ark. 224; Ward v. Magness, 75 Ark. 12, 86 S. W. 822; Jones v. Lewis, 30 N. C. 70, 47 Am. Dec. 338.

Counsel for petitioner insist that, even though the district court of Lincoln county, territory of Oklahoma, could have made the order nunc pro time, the district court of Lincoln countjr, state of Oklahoma, was not authorized to make the order, for the rea-sod, they alleged, that so far as this case is concerned, the state court is not the legal successor of the territorial court, and that the case against Lyda Howland was not a “pending” ease in the sense in which that term is used in Act Cong. March 4, 1907, c. 2911, § 20, 34 Stat. 1286, being an amendment to the Enabling Act (Bunn’s Const. p. 160). It is conceded that the Enabling Act and the acceptance of the provisions of the same in the Constitution of the state transfers to the state courts all causes, proceedings, and matters, civil or criminal, pending in the district courts of Oklahoma Territory. The question to be determined is, Is this case pending in the sense as. used in the Enabling Act. An action is “pending” until a judgment is fully satisfied, according to Words and Phrases, vol. 6, p. 5277, citing the following cases: State v. Tugwell, 19 Wash. 238, 52 Pac. 1056, 43 L. R. A. 717; Ulshafer v. Stewart, 71 Pa. 170; Holland v. Fox, 3 El. & Bl. 37; Wegman v. Childs, 41 N. Y. 159; Gates v. Newman 18 Ind. App. 392, 46 N. E. 654.

In the case of United States v. Taylor (C. C.) 44 Fed. 2, the United States Circuit Court, defining the word “pending” under the Enabling Act of the territory of Washington, used the following language:

“It is contended that, because a final decree had been previously rendered, the ease had terminated, and was not a pending case at the time the territorial court passed out of existence upon the admission of the state of Washington into the Union; and, therefore, in respect to this case, this court is not the successor of the territorial court. The decision upon this point involves simply a definition of the word ‘pending’ as used in the twenty-third, section of what is commonly called the ‘Enabling Act.’ Act Feb. 22, 1889, e. 180, 25 Stat. 683.
“In my opinion this act, when all its provisions are considered, manifestly shows that Congress intended to fully protect and preserve, not merely the rights of parties in a-few select and especially favored ones of the eases commenced in the territorial courts, but every right of every party in every case which at any time had been or should be commenced in those courts during their existence; and the words ‘all cases, proceedings, and matters * * * pending,’ used in the act, must be construed to embrace all cases, proceedings, and matters initiated in the territorial courts, and in which, at the time of the actual transformation of the territorial judicial system into the state and national systems, there should be yet any vitality, force, or virtue. I have heretofore decided, in a case which had proceeded to judgment in a territorial court, that the court, which, as to that case, was successor to the territorial court, should proceed with it, from the precise point to which it had already progressed, exactly as if the case had been commenced and proceeded with to the same point in that court. This view is supported by the Court of Appeals of New York in the case of. Wegman v. Childs, 41 N. Y. 159, and in that case other decisions are cited and followed. Certainly rights established by a final' judgment ought not to be held to have been forfeited or sacrificed by this statute, if by any reasonable or fair construction of its terms a different conclusion can be arrived at. The construction I have given to the act does lead to a different and more satisfactory conclusion. The construction contended for by counsel for the respondent does not, for the word ‘pending’ is used in the clause descriptive of the class of cases and proceedings to be transferred to the state courts, and bears exactly the same relation to those cases that it does to the cases and proceedings which are transferable to the national courts, and it is not possible to exclude this court from taking jurisdiction of a qase on the ground that, because it had proceeded to judgment in a territorial court, it then ceased to be a pending case, and yet hold that by virtue of this act of Congress the courts of this state could take cognizance of the same case. T hold, therefore, that the case has been lawfully transferred to this court, and also that, being so transferred, this court, of necessity, must adopt as its own all the proceedings and orders of its predecessor in the case, including the judgment, and must exercise the same powers which that court would now have if it had continued to be, including the power to punish a'violation of the injunction. The motion to discharge the rule is therefore denied.”

Even though it be said that the case against Lvda Howland would not be included in the restricted meaning of the term “pending,” jret the district court of Lincoln county would have, jurisdiction of the ease under the rule of implied jurisdiction, as announced by the Su]Dreme Court of this state in the case of Ex parte Curlee, 1 Okla. Cr. 145, 95 Pac. 414, Williams C. J., in rendering the opinion of the court, quotes with approval from the Merchants’ Nat. Bank v. Braithwaite, 7 N. D. 358, 75 N. W. 246, 66 Am. St. Rep. 653, as follows:

“Considering the provisions of the Enabling Act in connection with the failure of Congress to vest jurisdiction over territorial judgments in the federal courts, and the fact that Congress in passing the act must have contemplated that the state Constitution would create state courts having jurisdiction similar to that possessed by the territorial courts, and that these would be the better fitted to enforce judgments throughout the different counties in the state, we must infer an implied assent by Congress that jurisdiction over cases not pending should vest in state courts exclusively. Otherwise we must assume that those eases were to be left without anvr court possessing jurisdiction over them for any purpose whatever; for it is clear that no jurisdiction over them is vested by the Enabling Act in the federal courts.”

Justice Williams, after quoting from the above case, says:

“In line with this decision, cases, not of a federal character, not pending, involving offenses committed prior to the admission of the state into the Union, should vest in the state courts. Of course nonpending actions of a federal character would necessarily vest in the United States Courts in the state erected out of said territories just as they do in the United States Courts in the other states. Wo had not found this case at the time the opinion was written in the case of Ex parte Buchanen, 20 Okla. 831, 94 Pac. 943, with which it 'is in harmony. The provisions of the Oklahoma Enabling Act being substantially those as contained in the Enabling Act for North and South Dakota, it is presumed that Congress in adopting the same for Oklahoma did it with a view of the construction that had been had thereon in North Dakota. Under the authority of the Buchanen Case, which is supported bA the case just cited from North Dakota, the avtíí of habeas corpus is denied.”

As to whether the criminal procedure act was adopted and was in force April 11, 1902. at the time the relator was tried in the district court of Lincoln county, territory of Oklahoma, we find, on investigation of the records of the clerk of this court, that question was raised on an application of Thomas P. Queenan, for writ of habeas corpus, filed in the Supreme Court, territory of Oklahoma, on September 10, 1901. The relator there alleged that his confinement Avas illegal tor the reason that the criminal pro-ceclure act had never been adopted and was not in force. The Supreme Court heard the evidence as to whether the act had been properly adopted, and found that it had been, and denied the writ. For some reason it seems that this opinion of the Supreme Court was never published, although it is a matter of record in the office of the clerk. From the record in that case we are of the opinion that the criminal procedure act was in full force and effect on April 11, 1902, at the time the petitioner was tried in the district court of Lincoln county.

Counsel further insist that relator should be released for the reason that she ivas sentenced to the territorial penitentiary, but for a time was confined in the Kansas penitentiary at Lansing, Kan., under a contract purporting to have been made by representatives of the state of Kansas and the territory of Oklahoma, which contract, they allege, was void. Her detention in the Kansas penitentiary is not a matter before this court. The return in this ease shows that she is now being retained in the state penitentiary of Oklahoma, under a judgment and sentence as above set forth.

The writ m this case will be denied, and the petitioner remanded to the custody of the Avarden of the state penitentiary at MeAlester.

FURMAN, Presiding Judge, and DOYLE, Judge, concur