Armstrong v. State

• Decision Date: 02 June 1926
• Docket Number: A-5529.
• Citation: 248 P. 877,35 Okla.Crim. 116
• Parties: ARMSTRONG v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

248 P. 877

35 Okla.Crim. 116

ARMSTRONG v. STATE.

No. A-5529.

Court of Criminal Appeals of Oklahoma

June 2, 1926

Rehearing Denied Sept. 18, 1926.

Syllabus by the Court.

An information charging a misdemeanor, filed in the district court, confers no jurisdiction and does not prevent the filing of an information in the county court charging the same offense.

Where a defendant, upon being arraigned in the county court upon a charge of a misdemeanor of which the court has jurisdiction files an unverified objection challenging the jurisdiction of the court of his person, but does not specify the claimed ground for lack of jurisdiction and tenders no evidence in support of his objection, the action of the trial court in overruling such objection presents no error reviewable in this court.

Where a defendant is convicted in the trial court and appeals to this court, every presumption is indulged in favor of the regularity of the proceedings in the lower court, and the burden is on one who questions such proceeding to show clearly the irregularity complained of.

Additional Syllabus by Editorial Staff.

Where complaint under Comp. St. 1921, § 6991, for transporting intoxicating liquor, filed in district court, alleged only misdemeanor, it could not be ordered transferred to county court, under section 2353, but was required to be dismissed.

Appeal from County Court, Dewey County; R. L. Foster, Judge.

Tom Armstrong was convicted of transporting intoxicating liquor and he appeals. Affirmed.

W. P Hickok and J. H. Antrobus, both of Taloga, for plaintiff in error.

Geo. F. Short, Atty. Gen., for the State.

EDWARDS J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Dewey county on a charge of transporting intoxicating liquor and sentenced to confinement in the county jail for a period of 30 days and to pay a fine of $50.

Two contentions are argued by defendant: First, that the court had no jurisdiction of the cause; second, that the court had no jurisdiction of the person of defendant. An examination of the record discloses that a complaint was filed before the county judge as a committing magistrate, charging a felony under section 6991, Comp. Stat. 1921, as a second violation of the prohibitory liquor law. It further appears that the district court held the information stated only a misdemeanor, and ordered it transferred to the county court, evidently reasoning that an information charging a misdemeanor could be transferred to the county court for trial, under section 2353, Comp. Stat. 1921, in the same manner as an indictment. This court, in the case of Wychoff v. State, 6 Okl. Cr. 122, 116 P. 355, held that an information charging a misdemeanor conferred no jurisdiction on the district court, and could not be transferred, but must be dismissed. So, conceding that the proceedings in the district court were a nullity, we see no reason why an information could not be filed in the county court charging a violation of the prohibitory liquor law. This was done, although the information was styled, "amended information." The county court acquired jurisdiction of the cause. This would be true although an information charging a felony based on the same state of facts was pending in the district court, since a pending prosecution in the district court would not constitute jeopardy.

Considering the further assignment that the court had no jurisdiction of the person, defendant argues that no warrant was issued, and that he did not submit himself to the jurisdiction of the court. Upon his arraignment, defendant filed what is called a special appearance and objection, in which the jurisdiction of the person is challenged as follows:

"Comes now the defendant,

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