Ex parte Bailey
| Decision Date | 18 March 1908 |
| Citation | 94 P. 553,20 Okla. 497,1 Okla.Crim. 115,1908 OK 36,1908 OK CR 8 |
| Parties | Ex parte BAILEY. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
An indictment for the crime of murder returned after the admission of the state into the Union for an offense committed under the territory of Oklahoma, where no prosecution whatever had been begun before said date, is cognizable in the district court of the state in the county in which the offense was committed.
Application by Annie Bailey for writ of habeas corpus. Writ denied.
On the 16th day of January, 1908, the relator herein was apprehended by G. W. Garrison, sheriff of Oklahoma county, upon a bench warrant issued by virtue of an indictment returned against her on the same date by the grand jury of Oklahoma county state of Oklahoma, charging that on the 27th day of August A. D. 1907, the said relator, Annie Bailey, and Judge Peters did then and there unlawfully, purposely, willfully feloniously, and with malice aforethought, and without authority of law, and with a premeditated design then existing in the minds of the said defendants, and each of them, to effect the death of one Lillian Ray, with certain drugs and deadly poisons, the kind and character of said poisons being unknown to the grand jury, then and there given and administered by the said defendants, Annie Bailey and Judge Peters, to the said Lillian Ray, make an assault upon the said Lillian Ray, with the unlawful and felonious intent on the part of the said defendants, and each of them, then and there to take the life of her, the said Lillian Ray, and they, the said defendants, Annie Bailey and Judge Peters, did then and there, by administering said poisons aforesaid, unlawfully, purposely, willfully, knowingly, and feloniously poison her, the said Lillian Ray, from the effects of said poisons she, the said Lillian Ray, did languish, and, languishing, did then and there die, on the 27th day of August, 1907, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the then territory of Oklahoma, now state of Oklahoma. The venue was also alleged to have been in said county. On the 2d day of January, 1908, the relator filed in this court her petition for writ of habeas corpus, alleging that she was unlawfully restrained by said sheriff of her liberty; further alleging that the offense for which she stood indicted was committed, if at all, on the 27th day of August, 1907, in Oklahoma county, territory of Oklahoma; that no affidavit, information, indictment, warrant, or process of any character whatsoever had been filed or issued against her or any other person charging her or them with the commission of such offense prior to the returning into said district court of said Oklahoma county said indictment; that no rights, actions, suits, proceedings, contracts, or claims existed or were pending up to the time of the returning into court of said indictment, whereby or whereunder this said defendant was or could of right be charged with said offense; further alleging that the government of the United States of America had not given its consent to the state of Oklahoma or any consent whereby or whereunder she could be indicted or prosecuted by and under the authority of the state of Oklahoma for the said act, if committed, and, further, that the said state of Oklahoma had not consented to receive and had not accepted or assumed the jurisdiction or right to so prosecute her for such acts as alleged in said indictment, the same being committed under the jurisdiction of the laws of the United States and of the territory of Oklahoma, and, further, that the grand jury of said county, state, and district had no jurisdiction to prosecute said action nor to investigate the said acts or return and present an indictment therefor. A writ of habeas corpus was properly issued on said petition on the 22d day of January, A. D. 1908, and made returnable on the 25th day of said month, and service on said writ being acknowledged and accepted by the said G. W. Garrison as sheriff of said county on the 23d day of January, 1908, and the said sheriff made return showing that he held said relator in his custody as such sheriff by virtue of a bench warrant issued on said indictment hereinbefore referred to and detained her in the jail of said county under a commitment issued by said court. The relator demurred to said return.
H. L. Bolen and Fulton, Jenkins & Spencer, for relator.
Charles West, Atty. Gen., and W. C. Reeves, for respondent.
We have decided at this term of court in the case of Higgins v. Brown (not yet officially reported) 94 P. 703, that section 20 of the enabling act (34 Stat. pt. 1, p. 277, c. 3325), as amended March 4, 1907 (34 Stat. p. 287, c. 2911), having been concurred in by virtue of the provisions contained in sections 27 and 28 of the Schedule of the Constitution, vested jurisdiction of all criminal cases, not of a federal character, pending at the time of the admission of the state into the Union in the territorial courts of Oklahoma and in the United States courts in the Indian Territory, in the state courts of Oklahoma. Now, the question is presented as to whether or not a prosecution for a criminal offense committed in that part of the state formerly known as Oklahoma Territory prior to the admission of the state into the Union, where no prosecution whatever had been begun thereon, not even a complaint or information having been filed against the accused prior to said date, can be instituted in the state courts afterwards, and prosecuted to a final judgment. Section 1 of the Schedule of the Constitution provides that "no existing rights, actions, suits, proceedings, contracts or claims shall be affected by the change in the forms of government, but all shall continue as if no change in the forms of government had taken place." Section 2 of the Schedule, supra, further provides "that all laws in force in the territory of Oklahoma at the time of the admission of the state into the Union, which are not repugnant to this Constitution, and which are not locally inapplicable, shall be extended to and remain in force in the state of Oklahoma until they expire by their own limitation or are altered or repealed by law." As was stated in the case of Ex parte Brown, supra, into every Constitution of the states admitted into the Union since 1791 similar provisions to those of sections 1 and 2 of the Schedule, supra, have been incorporated, without any concurrence of the federal government, except by implication by an act of Congress, without any prior enabling act, admitting such state or states into the Union, or by express or reasonable implication in the enabling act, offenses, not of a federal character, committed under the territorial government heretofore have been originally instituted after the admission of the state into the Union, and prosecuted to final determination in the state courts.
The states of Nevada, Colorado, Montana, North Dakota, South Dakota, Washington, and Utah were admitted under enabling acts similar to that of Oklahoma, and wherein no express provision was made for nonpending cases; but in their respective Constitutions practically the same language as that in the Constitution of this state is used for the continuance of rights, actions, and prosecutions just as if there had been no change in the form of government from a territory to a state. Sections 1 and 2 of the Schedule of the Constitution of Washington are almost identically, word for word, the same as sections 1 and 2 of the Schedule of the Constitution of Oklahoma. In the former state offenses not of a federal character committed prior to the admission of the state first instituted after such time were prosecuted to final determination in the state courts as successors of the territorial courts. State v. Stowe, 3 Wash. St. 206 28 P. 337, 14 L. R. A. 609; Lybarger v. State, 2 Wash. St. 553, 27 P. 449, 1029; State v. Freidrich, 4 Wash. 206, 29 P. 1055, 30 P. 328, 31 P. 332; Freidrich v. Territory, 2 Wash. St. 358, 26 P. 976; Ex parte Frederich, 149 U.S. 79, 13 S.Ct. 793, 37 L.Ed. 653; Way v. Woolery, 6 Wash. 158, 32 P. 1082; Foster v. Territory, 1 Wash. St. 412, 25 P. 459. States with similar enabling acts and substantially like provisions in their Constitutions have prosecuted such offenses to...
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