Evans v. Willis
| Decision Date | 25 September 1908 |
| Citation | 97 P. 1047,22 Okla. 310,1908 OK 199 |
| Parties | EVANS v. WILLIS, County Judge. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
No original prosecution can be instituted in a court of record in this state except by presentment of indictment by a grand jury, or by an information exhibited by the county attorney or some other officer thereto authorized by law.
[Ed Note.-For other cases, see Indictment and Information, Cent Dig. §§ 1-3; Dec. Dig. § 1. [*]]
Where the paper writing purporting to be an information is not exhibited or presented by the county attorney, or some one authorized by law, the same being invalid, and not capable of being amended, the county court did not acquire any jurisdiction of such action or prosecution.
[Ed Note.-For other cases, see Indictment and Information, Cent Dig. § 150; Dec. Dig. § 39. [*]]
Upon an information purporting to have been presented by a private person, neither the prosecuting attorney for the county nor any other officer thereto authorized having exhibited same, the lower court having no jurisdiction to hear or determine such case on said information, and there being no other plain, speedy, and adequate remedy at law for the relator, his remedy is by a writ of prohibition to restrain action thereon.
[Ed. Note.-For other cases, see Prohibition, Cent. Dig. § 43; Dec. Dig. § 10. [*] ]
Application by Sam Evans for writ of prohibition to W. T. Willis, county judge. Writ awarded.
On the 24th day of July, A. D. 1908, a petition was filed in this court by the relator, Sam Evans, against the respondent, W. T. Willis, wherein it was alleged that, on the 22d day of July, A. D. 1908, there was filed in the county court of Lincoln county a pretended criminal information, charging relator with the crime of assault and battery; that on said date he was placed on trial in said court by said respondent as judge of said court, before a jury on said charge under said information, the body of which is in words and figures as follows: Said information was duly sworn to before the respondent, as acting county judge of said county, by said Lee Matheyer. Upon the back was indorsed the style of the cause and file mark, under date of the 22d day of July, 1908, and a list of the witnesses for the state. That on the same date, prior to the trial, relator filed a motion to quash the information and the warrant issued thereon, for the reason that the same had been filed by one Lee Matheyer, who is neither the county attorney of said county, nor the deputy, nor assistant county attorney, nor the Attorney General of the state, nor any one authorized by the Attorney General, nor any one in authority, and for the further reason that said information was not drawn, presented, or filed by any one acting in behalf of, or on the part of, the state of Oklahoma or the county of Lincoln, but was in fact carried on by a private prosecutor. It is further alleged that, notwithstanding the illegality of said proceedings, and the want of legal information or charge, relator was compelled to go to trial, and on the 22d day of July, 1908, was found guilty of the alleged offense by a jury in said county court; that said trial and all proceedings had under and by virtue of said pretended information were and are null and void, for the reason that the court never acquired jurisdiction over the person of the relator or the subject-matter of the controversy. Relator further alleges that the presiding judge of said court would, unless restrained, pronounce a sentence on said relator; that relator's remedy by appeal, or by any other procedure except by writ of prohibition, was inadequate. On the 24th day of July, A. D. 1908, a preliminary writ of prohibition was issued out of this court. On the 28th day of August, A. D. 1908, respondent filed his return to said writ, wherein he alleged that relator was not illegally restrained of his liberty, as on the 1st day of July, A. D. 1908, a complaint was made to John J. Davis, county attorney of Lincoln county, Okl., and he was informed by some five different persons that Sam Evans had committed a brutal assault and battery upon one Duncan Chishom, on the 24th day of June, A. D. 1908, in the city of Chandler, Lincoln county, Okl., who stated to the county attorney that they had some 15 or 20 witnesses who saw the relator's brutal conduct in kicking and maltreating the said Chishom, and the county attorney refused to prosecute, or to O. K. a complaint against the relator, rendering as his excuse that said relator was a friend of his, and a good man to keep him posted on whisky cases, and absolutely refused to start the matter and have an information or complaint filed. Thereupon several of the citizens, knowing of the brutal action of the relator, made a bond, as required by the statutes of the state of Oklahoma, and verified it, to pay the costs of the prosecution, and one Lee Matheyer went before the county judge of Lincoln county, Okl., and swore positively to a complaint and information, after said bond had been given. Thereupon a warrant was issued in due form, and delivered to the sheriff of said county on the 1st day of July, 1908, who executed same by arresting said relator, who was brought before the county court, and, the county judge being disqualified, and the counsel representing the prosecution and the defendant not being able to agree upon a judge pro tem., the said W. T. Willis was elected, in accordance with section 3306, Wilson's Rev. & Ann. St. 1903, as judge pro tem. to try said cause. Thereupon the cause proceeded to trial before a jury of six men, selected as provided by law. The evidence having been introduced both by the state and the defendant, and the jury instructed as to the law, and having heard the argument of counsel for both sides, the cause was submitted to the jury for their consideration. The jury returned a verdict of guilty against the defendant, and, a motion for a new trial having been filed by defendant, the matter was set down later to hear said motion. Thereupon the preliminary writ herein was served upon the respondent.
Hoffman & Robertson and Rittenhouse & Rittenhouse, for relator.
W. C. Reeves, Asst. Atty. Gen., for respondent.
It is the contention of the relator that the county court of Lincoln county has no jurisdiction to try him upon the information in this case. The county court is a court of record (Const. § 11, art. 7 [Bunn's Ed. § 181]). It has concurrent with the district court, appellate jurisdiction of judgments of justices of the peace and police judges in all criminal matters, and, concurrent with justices of the peace, jurisdiction in misdemeanor cases, and exclusive jurisdiction in all misdemeanor cases of which justices of the peace have no jurisdiction; and, in criminal cases appealed from justices of the peace and police judges, there shall be a trial de novo on both questions of law and fact. Section 3. "An act to define the jurisdiction and duties of the county court," etc. Sess. Laws, 1907-08, p. 285, c. 27; Const. § 12, art. 7 (Bunn's Ed. § 183). Section 17, art. 2 (Bunn's Ed. § 26) Okl. Const., provides that The question arises, however, as to whether or not any person, other than the county attorney, or some one acting for him, could file this information. An information would lie at common law for all misdemeanors, but not for a felony, it having been the policy under such law that no person should be put on trial for a capital offense, or any other crime known or understood as an offense, under said law occasioning a total forfeiture of the offender's lands or goods, or both, except by indictment. This is the line of demarcation by which we are to determine whether or not at common law an offense was a felony or a misdemeanor. 4 Bl. Com. 94, 95, 310. At common law an information is defined to be a complaint or accusation exhibited against a person for some criminal offense, committed immediately against the King, or against a private person, an indictment being an accusation preferred by the oath of 12 men, and an information is only the allegation of the officer who exhibits it. 3 Bac. Abr. 635, tit. "Information." According to Mr. Bacon, there are two kinds of criminal information under the common-law procedure in England, the first being an offense immediately against the King, and was filed by the Attorney General ex officio, and without leave of court. The second was against private individuals, and exhibited by the...
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