Ex parte Bochmann
| Decision Date | 29 October 1921 |
| Docket Number | A-4082. |
| Citation | 201 P. 537,20 Okla.Crim. 78 |
| Parties | EX PARTE BOCHMANN. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
In this state a municipal court is a constitutional court and as such is bound by the constitutional provision found in section 17 of the Bill of Rights: "Prosecutions may be instituted in courts not of record upon a duly verified complaint."
Under the federal Constitution and under our Constitution (section 17, Bill of Rights) and section 5544, R. L. 1910, and the Act of March 15, 1917 (Sess. Laws, c. 127), all prosecutions for the violation of a municipal ordinance, where the punishment is or may be imprisonment, involving a fine and costs in excess of $20 is an action criminal in its nature, and, as such, is governed by the Constitution and laws relating to criminal procedure, so far as applicable.
That part of section 650, R. L. 1910, providing that "The complaint when made by the marshal, assistant marshal or regular policeman against any person arrested without process * * * need not be in writing," is in conflict with section 17 of the Bill of Rights. Held, that all prosecutions of a criminal nature should be maintained upon a verified written complaint.
A municipal court in this state may summarily and without a jury impose a fine and costs not in excess of $20 and may imprison the accused for the nonpayment of such fine and costs, but not where the punishment is or may be imprisonment, or is or may be a fine and costs in excess of this sum.
Vagrancy is made an offense by general law, as well as by the ordinances of the city of Lawton. A municipality may enact police regulations not inconsistent with general laws on the same subject. The municipality may move in the same direction as the Legislature, but not contrary to nor in an opposite direction.
Additional Syllabus by Editorial Staff.
The Criminal Court of Appeals will take judicial notice of the provisions of municipal charters in this state.
While the law and Lawton City Charter, § 40, contemplate that all ordinances shall be recorded at length by the clerk immediately after passage, this is a ministerial duty, and the omission of enrollment and publication will not affect its validity.
In habeas corpus proceedings, presumptions of regularity of proceedings of courts of record do not apply to municipal and other courts not of record, and the municipal court record should show a conviction under a municipal ordinance upon sufficient legal testimony at a public trial or upon a plea of guilty in open court in view of Rev. Laws 1910, § 650.
Andy Bochmann was convicted of vagrancy in violation of an ordinance of the city of Lawton, Okl., and sentenced to a fine of $20 and costs amounting to $6, in default of which he was committed to the city jail, and he applied to the county court of Comanche county for a writ of habeas corpus, which was denied, whereupon he filed an application in this court for habeas corpus. Writ allowed, and respondent ordered to release petitioner.
That part of 11 Okl.St.Ann. § 714, relating to municipal corporations and providing that "the complaint when made by the marshal, assistant marshal or regular policeman against any person arrested without process," need not be in writing is in conflict with Const. Bill of Rights, § 17.
C. R Reeves, of Lawton, for petitioner.
E. L. Fulton, Asst. Atty. Gen., and S. I. McElhoes, of Lawton, for respondent.
Andy Bochmann, hereinafter referred to as the petitioner, was on the 3d day of September, 1921, convicted of vagrancy, in violation of a city ordinance of the city of Lawton. This ordinance was passed as an emergency measure by the board of commissioners on the day preceding the conviction. The penalty assessed was a fine of $20 and costs amounting to $6, and in default of the payment of this fine and costs the petitioner was committed to the city jail of Lawton, there to be held until the fine and costs should be paid. Application was made to the county court of Comanche county for a writ of habeas corpus, which application was denied, whereupon this application was filed in this court.
From the record before us it appears that this arrest and conviction was one of a series against this petitioner; that a former ordinance had provided for a maximum penalty of a fine of $100 and imprisonment for a period of 30 days. From an arrest and imprisonment under the latter named ordinance the petitioner was, on the 2d day of September, 1921, discharged by a writ of habeas corpus granted by the county court of Comanche county. Upon the same day the emergency ordinance here in controversy was passed, the scope and terms of both ordinances being the same, except that the later one reduced the maximum penalty for its violation to a fine of $20 and costs. This ordinance provides as follows:
The petitioner here contends:
(1) That the ordinance is void because it was never published nor enrolled.
(2) That the municipal court had no jurisdiction of the petitioner because there was no written verified complaint filed against him.
(3) That the alleged judgment of conviction rendered and entered was void, for the reason that the petitioner was not informed of the specific accusation against him and that no witnesses were sworn and no testimony was introduced, and that he had no trial as contemplated by the Constitution and laws of this state.
(4) That the petitioner was arrested without a complaint showing probable cause and without a warrant, at a time when he was not engaged in the commission of an offense and not having been charged with nor suspected of committing a felony.
(5) That the petitioner was denied the right of a trial by jury.
As to the claim that the ordinance under which petitioner's arrest was made is void because it had not been published nor enrolled at the time of the arrest, it seems that the publication was not necessary under the provisions of section 40 of the charter of the city of Lawton. This court will take judicial notice of the provisions of municipal charters in this state. Section 40 of the charter, among other things, provides:
"An emergency ordinance shall take effect and be in force immediately upon its passage."
It is true that the law and the charter contemplate that all ordinances shall be recorded at length by the clerk in an ordinance book immediately after their passage, but this is a ministerial duty of the clerk, the omission of which will not affect the validity of the ordinance. Marth v. City of Kingfisher, 22 Okl. 602, 98 P. 436, 18 L. R. A. (N. S.) 1238.
The only written record, file, or document appearing in this case appears to be the police court docket, as follows:
Police Court Docket.
City of Lawton, Oklahoma, Plaintiff, v. Andy Bochmann, Defendant. Case No. 964.
It is conceded that there was no formal written complaint, verified or otherwise, made in this case.
Section 1, art. 7, of the Constitution provides:
"The judicial power of this state shall be vested in the Senate, sitting as a court of impeachment, a Supreme Court, district courts, county courts, courts of justices of the peace, municipal courts,...
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