Elliott v. Mills

• Decision Date: 25 February 1959
• Docket Number: No. A-12716,A-12716
• Citation: 335 P.2d 1104
• Parties: Elmo ELLIOTT, Petitioner, v. Clarence M. MILLS, Judge of the District Court of Oklahoma County, Seventh Judicial District, and the following duly elected, qualified, and acting District Judges of Oklahoma County, Seventh Judicial District, State of Oklahoma, to-wit: Glen O. Morris, A. P. Van Meter, William L. Fogg, Fred Daugherty, and W. R. Wallace, Jr., Respondents.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1104

335 P.2d 1104

Elmo ELLIOTT, Petitioner, v. Clarence M. MILLS, Judge of the District Court of Oklahoma County, Seventh Judicial District, and the following duly elected, qualified, and acting District Judges of Oklahoma County, Seventh Judicial District, State of Oklahoma to-wit: Glen O. Morris, A. P. Van Meter, William L. Fogg Fred Daugherty, and W. R. Wallace, Jr., Respondents.

No. A-12716.

Criminal Court of Appeals of Oklahoma.

Feb. 25, 1959.

Syllabus by the Court

1. The Writ of Prohibition may not issue to prevent inferior courts from erroneously exercising jurisdiction, but only to proceedings as to which inferior tribunal is wholly without jurisdiction or threatens to act in excess of jurisdiction.

2. Where allegation as to Manslaughter in 1st degree is insufficient to charge criminal homicide because one year and a day has elapsed between infliction of mortal wound and the death, the trial court is not wholly deprived of jurisdiction and is not precluded from trying the defendant upon the lesser included offense which is supported by the information.

3. Writ of Prohibition will not issue if the trial court has jurisdiction of the subject matter and of the defendant even though the record may contain errors that might possibly entitle the defendant to a reversal in case of conviction.

4. The extraordinary writ of prohibition will not be awarded when the ordinary and usual remedies provided by law, such as appeal or other modes of review, are available.

Original action by Elmo Elliott, seeking a writ to prohibit the respondents from prosecuting petitioner on a charge of manslaughter in the District Court of Oklahoma County. Writ denied.

John M. McPherron, of Foliart, Hunt & Shepherd, Marion P. Opala, of Miskovsky & Miskovsky, Oklahoma City, for petitioner.

James W. Bill Berry, County Atty., Ryland F. Keys, William R. Saied, Asst. County Attys., Oklahoma City, for respondents.

NIX, Judge.

Petitioner, Elmo Elliott, was charged by information in the District Court of Oklahoma County with the crime of manslaughter first degree, and in this proceeding asks this court to issue a writ, prohibiting the District Court of Oklahoma County from prosecuting such action.

The information under which the petitioner stands charged reads as follows:

'The State of Oklahoma, Plaintiff, v. Elmo Elliott, Defendant,

'In the name and by the authority of the State of Oklahoma, comes now James W. Bill Berry, the duly qualified and acting County Attorney in and for Oklahoma County, State of Oklahoma, and on his official oath gives the District Court in and for said Oklahoma County and the State of Oklahoma, to know and be informed that heretofore, to-wit:

'on the 9th day of October, A.D., 1958, in Oklahoma County, State of Oklahoma, whose more full and correct name is to your informant unknown, then and there being, did then and there wilfully, unlawfully and feloniously commit the crime of Manslaughter in the First Degree in the manner and form as follows, to-wit:

'That is to say, the said defendant, in the county and state aforesaid, and on the day and year aforesaid, then and there being, did then and there wilfully, wrongfully, unlawfully and feloniously cause the death of Donald A. Haynes by wilfully, wrongfully, unlawfully and feloniously driving and operating a 1955 Ford Pickup Truck motor vehicle bearing 1957 Oklahoma License No. 301F/T994, with a careless and culpable disregard of the rights and safety of others; in that while driving said motor vehicle west on Southeast Fifteenth Street, in Oklahoma City, in the said county and state, on July 24, 1957, he drove to the left of the center line in a reckless and wanton manner, and struck and collided with a 1954 Ford sedan motor vehicle, bearing 1957 Oklahoma License No. 1-61209, and as a result of the said collision, the said Donald A. Haynes suffered certain mortal wounds and injuries on his body of which mortal wounds and injuries the said Donald A. Haynes died on October 9th A.D. 1958.'

To this charge petitioner entered his plea of not guilty and later was permitted to withdraw the same for the purpose of filing the following pleadings:

'Comes now the defendant, Elmo Elliott, and moves the Court as follows:

'1. To quash the information filed herein for the reason that said information on its face fails to charge a public offense under the laws of the State of Oklahoma.

'2. The defendant demurs to information filed herein for the reason and upon the ground that the same is tainted on its face with a fatal and vitiating defect.

'3. The defendant states that the allegations contained in the information filed herein show on their face that the offense that is purportedly charged in that information was abated at the time of the filing thereof and, therefore, cannot constitute the basis for a criminal prosecution under the laws of the State of Oklahoma.

'Wherefore, defendant prays that the information filed herein purportedly charging the offense of Manslaughter in the First Degree be quashed, dismissed and held for naught for the reasons aforesaid and that this defendant be discharged and his bond exonerated.'

The demurrer, motion to dismiss, and plea in abatement was overruled.

The petitioner comes to this court and asks for a writ of prohibition upon the grounds that the information fails to state facts constituting a public offense under the law or within the meaning of the laws of the State of Oklahoma.

Petitioner contends that the action is barred by the common law rule that a person cannot be prosecuted for a homicide unless the deceased died within one year and a day after the commission of the alleged injury. By virtue of petitioner's demurrer he admits all allegations of the information, but relies exclusively upon the application of the common law rule that the information shows upon its face that more than a year and a day had elapsed between the infliction of the mortal would and the death of the deceased. Upon this premise the court is confronted with numerous questions of law: Is it the common law that death must ensue within a year and a day as a prerequisite to criminal homicide? How for throughout the United States does the common law rule prevail? Is the common law rule applicable in this state? Was the trial judge justified under the law in overruling the plea in abatement? Was he justified by law in overruling the demurrer and the motion to dismiss? Are these matters properly before us as to justify the issuance of a writ of prohibition?

In determining the question of the common law rule, this court has done conscientious and exhaustive research in law as well as history. It is of first impression in this state. Though it has been adjudicated in numerous jurisdictions throughout the United States, it has never been presented to this court in its 52 years of existence.

In order that we may properly consider the question whether the rule that to constitute the crime of homicide, death must ensue within 366 days of the receipt of the fatal stroke it is necessary to briefly review its incorporation in the common law. The first recognition of this rule is to be found in the Statutes made at Gloucester on the 4th of October, 1278, § 6 Ed. 1 ch. 9. Also, Reeves History of English Law, Vol. 2, wherein it was adopted that an appeal for homicide could not be abated for default if the party died within the year and the day after the deed was done. Thus, the rule had its official birth in the Statute of Gloucester some 700 years ago. A survey of many text authorities discloses an invariable and uniform assumption that the rule has been applied generally at common law to all forms of felonious homicide.

The brief of petitioner lists numerous citations as to the history of the rule and in support of his contention that the rule is universally accepted. These citations and authorities indicate diligent inquiry into the history of the rule and are worthy of repeating.

In Hawkins' 'Pleas of the Crown,' Volume I, 8th Edition by Curwood, 1824, ch. 13, Section 9, at page 93, it is stated:

'Also it is agreed, that no person shall be adjudged by any act whatever to kill another who doth not die thereof within a year and a day after; in the computation whereof, the whole day in which the hurt was done shall be reckoned the first.'

In Chitty on the 'Criminal Law', Volume 3, at page 726, the rule is stated:

'And in no case can a man be adjudged guilty of homicide unless the death takes place within a year and a day after the injury to which it is ascribed; which computation is made inclusive of the day on which the wrong was committed, Book IV, Blackstone's Commentaries, 197.'

In 'Hallsbury's Laws of England,' Volume 9, 2nd Edition, by Lord Hailsham, page 428, Section 734, the author states:

'If death does not ensue until after the expiration of a year and day from the day when the injury was inflicted, it is an irrebuttable presumption of law that the death is attributable to some other cause and the person who inflicted the injury is not punishable for either murder or manslaughter.'

In Stephen's book on 'History of the Criminal Law of England', Volume 3, at pages 7 and 8, the author states:

'I pass next to the cases in which, though the connection between death and the injury is direct and distinct, other causes have intervened sufficiently to stem from the independence of the injury to prevent the case from being treated as homicide. * * * The only cases worth examining are those which illustrate the limit. One obvious limit is length of time. Instances of death from wounds or other injuries received many years before death are not unknown. In some cases of this sort the connection is clear. In general, it would be obscured. The law of England had laid down an arbitrary rule for criminal purposes upon this subject. No one is criminally responsible for a death which occurs upwards of a year and a day (that is, more than a complete...