Bennett v. District Court of Tulsa County

• Decision Date: 11 October 1945
• Docket Number: A-10464.
• Parties: BENNETT v. DISTRICT COURT OF TULSA COUNTY et al.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

162 P.2d 561

81 Okla.Crim. 351

BENNETT v. DISTRICT COURT OF TULSA COUNTY et al.

No. A-10464.

Court of Criminal Appeals of Oklahoma

Oct. 11, 1945

Original proceeding by Henry G. Bennett for a writ of prohibition against the District Court of Tulsa County and others, to prevent defendants from proceeding with the trial of petitioner on an indictment charging him with perjury before a grand jury in Tulsa County.

Writ granted.

See also, Okl.Cr.App., 162 P.2d 581.

JONES J., dissenting.

Syllabus by the Court.

1. The writ of prohibition is a highly remedial writ, and as a general rule will not be granted unless absolutely necessary or the public good demands. But where this necessity and demand appear, the Criminal Court of Appeals has the undoubted right to grant this relief.

2. The writ of prohibition may not be granted on account of the inconvenience, expense or delay of other remedies, but will be granted when the remedy available is insufficient to prevent immediate injury or hardship to the party complaining, particularly in criminal cases.

3. When it appears to the court having jurisdiction to issue the writ of prohibition that the lower court, under any conditions, is without jurisdiction to try the accused upon the indictment or information filed, with all amendments permitted under the law considered as made, to require one to invoke the remedy of appeal occasioning delay and necessitating an appeal bond or resulting in his being confined in jail pending the determination of his appeal, when the same conclusion as to the lower court being without jurisdiction will be reached would cause an unnecessary and unreasonable hardship upon the accused, the writ of prohibition will be granted to relieve this hardship.

4. Tit. 22 O.S.1941 § 311, is as follows: 'A grand jury is a body of men consisting of twelve jurors impaneled and sworn to inquire into and true presentment make of all public offenses against the State committed or triable within the county for which the court is holden.'

Tit. 21 O.S.1941 § 491 defines perjury as follows: 'Every person who having taken an oath that (he) will testify, declare, depose or certify truly before any competent tribunal, officer, or person, in any of the cases in which such an oath may by law be administered, wilfully and contrary to such oath, states any material matter which he knows to be false, is guilty of perjury.'

5. In order to constitute perjury, the false statement must be made in a proceeding, or in relation to a matter within the jurisdiction of the tribunal or officer before whom the proceeding is held, or by whom the matter is considered.

6. The general rule is that perjury cannot be assigned upon the alleged false testimony of a witness given in the course of a trial, or before a tribunal, where the court has no jurisdiction of the offense charged. An exception to the general rule is that perjury may be charged where the proceedings are merely erroneous or voidable, or where jurisdiction had been properly had and lost.

7. False testimony before a grand jury in order to be perjury must necessarily be as to a matter which the grand jury had power to investigate.

8. A grand jury is an inquisitorial body pertaining alone to offenses committed within the county, or that could be prosecuted in the county and has no power to inquire concerning offenses committed beyond the county's boundaries.

9. Where one is charged with the crime of perjury, the false swearing must be material to the issue or question under consideration, before a conviction will be sustained.

F. A. Rittenhouse, of Oklahoma City, Swank & Swank, of Stillwater, Blakeney & Blakeney, of Oklahoma City, Ownby & Warren, of Tulsa, Welch & Welch, of Madill, and W. Hendrix Wolf and John Monk, both of Stillwater, for plaintiff.

Randell S. Cobb, Atty. Gen., E. J. Broaddus, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., and M. S. Simms and John L. Ward, Jr., Asst. Co. Attys., all of Tulsa, for defendants.

BAREFOOT Presiding Judge.

Petitioner, Henry G. Bennett, was indicted by a grand jury in Tulsa County, Oklahoma, for the crime of perjury, and in this proceeding asks this Court to issue a writ, prohibiting the District Court of Tulsa County from prosecuting such action.

The original indictment containing three separate courts, each charging this petitioner with perjury, was filed in the District Court of Tulsa County on November 17, 1943. The indictment charged petitioner with perjury in connection with certain evidence before a grand jury in Tulsa County.

Omitting the formal part, the information reads:

'* * * in response to the following question propounded to him by the County Attorney of Tulsa County:

"Dr. Bennett, will you kindly tell this grand jury what you know concerning the revision, or the purported revision, of the original Bennett-Conger-Conger arithmetic which was adopted by the 1937 Textbook Commission as revised in 1937. For instance, will you kindly tell us under whose supervision it was revised, and what you know about this revision?'

'In answer to said question so propounded to him by the County Attorney of Tulsa County, the defendant testified as follows:

"I know nothing whatsoever about any revision or contemplated revision of the original Bennett-Conger-Conger arithmetic as adopted by the State of Oklahoma in 1933. I discussed with no person whomsoever anything at all about any revision or proposed revision to be made in 1937. As a matter of fact, the first time I knew that there had been a proposed revision or a revision of this arithmetic was several months after it had been adopted by the Textbook Commission when a printed copy of the revised took was handed to me.'

* * *

* * *

'Count Two:

"Dr. Bennett, at any time prior to the adoption of the Textbook Commission appointed by William H. Murray in 1933, and as a consideration for the adoption of your books, Steps in Arithmetic, by that Commission, were you requested, and did you make, an assignment of all your royalties, as author, or any percent thereof, to the said William H. Murray Foundation?'

'The defendant answered and testified as follows:

"I do not know.'

* * *

* * *

'Count Three:

"Dr. Bennett, will you tell this Grand Jury, please sir, if you have taken any part in the political campaign of either Robert S. Kerr, Leon C. Phillips, or any other person, for Governor of the State of Oklahoma and have you taken any part in aiding or assisting in the election of any other person in the State of Oklahoma to public office?'

'The defendant answered and testified as follows:

"I have never engaged in politics in the State of Oklahoma. I have never assisted, either directly or indirectly, any person in any race which they have made for office in the State of Oklahoma, from Governor to justice of the peace. I have never spoken in behalf of any candidate for office, either publicly or privately, and the only assistance I have ever given any candidate for office was my single vote cast at the polls. It would be absurd for a man in my position to belittle himself by engaging in politics.'

'That all of the said testimony and statement and answers given to the question(s) propounded by the County Attorney, in the presence of the Grand Jury, was material to the question, investigation and issues then and there being inquired into by the said Grand Jury, and the said testimony, statements and answers aforesaid were false and untrue, and were corruptly and falsely made, and were so known to be so by the said defendant at the time; and the said defendant did then and there unlawfully, wilfully, knowingly, falsely, corruptly and feloniously commit perjury in the way and manner as aforesaid. * * *

This indictment was filed on November 17, 1943. On November 22, 1943, a petition for habeas corpus was filed in this Court, and on November 24, 1943, an application for writ of prohibition was filed.

Thereafter and on December 9, 1943, three separate indictments were returned against petitioner, the indictments charging the same offenses, verbatim, as the three counts in the original indictment.

At the hearing before this Court on the above-mentioned petitions (it appearing that the grand jury of Tulsa county had also indicated petitioner and others, wherein they were charged with the crime of conspiracy), it was ordered that the hearing be continued until petitioner and his co-defendants should have opportunity to file motions to quash the indictments returned in Tulsa County, and file demurrers thereto, and after said motions and demurrers were heard by the District Court of Tulsa County, in case of an adverse ruling, the hearing would be resumed in this Court.

This procedure was followed: The trial court, after hearing much testimony, sustained the motions to quash the indictment in the conspiracy case against all of the defendants. The court also sustained the motions to quash two of the perjury charges against petitioner Bennett (cases Nos. 11,465 and 11,466 in the District Court of Tulsa County), but overruled the motion as to case No. 11,464, concerning the Bennett-Conger-Conger arithmetic, and it will be here considered. Complete copy of the testimony taken before the District Court of Tulsa County on the motions to quash the indictments has been filed as a part of the record in this case.

The State appealed from the ruling of the court sustaining the motion to quash in the conspiracy case as to all of the defendants. This Court has today rendered an opinion affirming the decision of the lower court in that case, and holding that the action was barred by the statute of limitations, and that Tulsa County grand jury was without jurisdiction to make an investigation of...