Ex parte Davis

• Decision Date: 14 June 1939
• Docket Number: A-9649.
• Citation: 91 P.2d 799,66 Okla.Crim. 271
• Parties: Ex parte DAVIS.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

91 P.2d 799

66 Okla.Crim. 271

Ex parte DAVIS.

No. A-9649.

Court of Criminal Appeals of Oklahoma

June 14, 1939

Syllabus by the Court.

1. The "police power" is an inherent attribute of state sovereignty, under which the state, within constitutional limitations, may determine what is dangerous and injurious to public order, safety, health, morals and general welfare of society, and to govern men and things, by any legislation appropriate to those ends.

2. To justify a court in declaring an act of the Legislature void it is not enough that the statute goes to the verge of constitutional power. It must appear clearly that it goes beyond the power. In case of doubt the law must be sustained.

3. All acts of the legislature are presumed to be valid, and the courts should not declare an act to be unconstitutional unless it is clearly so. If there is doubt, the express will of the Legislature should be sustained.

4. A law that is unconstitutional is so because it is either an assumption of power not legislative in its nature; or because it is inconsistent with some provision of the State or Federal Constitutions.

5. Where the language of a statute is unambiguous and its meaning is evident, it must be held to mean what it plainly expresses, and no room is left for the application of rules of construction and interpretation.

6. A penal statute is sufficiently certain, although it may use general terms, if the offense is so defined as to convey to a person of ordinary intelligence what acts are prohibited.

7. The Act, House Bill No. 125, approved April 28th, 1939, 21 Okl.St.Ann. § 964 et seq., "making it unlawful to possess, sell, solicit the sale or take orders for the sale of, or lease, or rent, or set up, operate or permit others to set up or operate, any slot machine or punch board, and prohibiting the running of slot machines and punch boards and providing penalties", is not void under Sec. 7 of Art. 2 of our State Constitution, Okl.St.Ann., in that it amounts to the taking of property without due process of law nor is it in violation of Sec. 57 of Art. 5, which provides that: "Every Act of the Legislature shall embrace but one subject which shall clearly be expressed in its title." Nor is the act inimical to the Fourteenth Amendment to the Federal Constitution, U.S.C.A., which provides that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life or liberty or property without due process of law nor deny to any person within its jurisdiction the equal protection of the law."

8. The provisions of House Bill No. 125, Session Laws, 1939, are not void for uncertainty and the terms of the statute are sufficiently definite and certain to inform those who are subject to it what acts on their part will render them liable to its penalties.

9. When a person is held in custody under a void order of commitment, or is imprisoned without due process of law under the sentence of any court of the state, it is not only within the authority of this court, but it is its duty upon habeas corpus, to inquire into the illegality of the commitment when the matter is properly brought before it by petition.

10. Where the facts stated in a petition for a writ of habeas corpus will not warrant petitioner's discharge, the writ will be denied.

Habeas corpus proceeding by W. H. Davis.

Writ of habeas corpus denied.

The petition herein, which was duly verified, omitting title, is as follows:

"Your petitioner, W. H. Davis, represents and states to this Honorable Court that he is restrained of his liberty and is unlawfully imprisoned and restrained in the County Jail of Tulsa County, at Tulsa, Oklahoma, by A. Garland Marrs, Sheriff of Tulsa County.

2. The cause of said restraint according to the best knowledge and belief of your petitioner is: That on the 15th day of May, 1939, your petitioner set up one certain marble, pin and ball machine for the purpose of permitting persons to use same and play thereon for amusement purposes only; that the character and description of said marble, pin and ball machine is a table, or board, having holes, pockets or cups into which such balls may drop or become lodged and have arches, pins and springs to control, deflect or impede the direction and speed of the balls put into motion by the player, but your petitioner alleges that said restraint is illegal and unauthorized in that said marble, pin and ball machine is an innocent amusement device and as such is regularly licensed by ordinance in the City of Tulsa, Oklahoma, and villages, towns and other cities throughout the State of Oklahoma and that a table of like character, description and mechanism has been judicially determined by the District Court of Tulsa County, Oklahoma, in Cause No. 64737, to be an innocent and harmless amusement device.

3. That said marble, pin and ball machine aforesaid, is operated mechanically, automatically and manually and may be played by inserting a coin in a slot whereupon five balls, or marbles, are directed into a chute for playing, by the player, by lifting the marbles, or balls, upon a chute that are played on the surface by plunger operated by the player; upon being played on such board the balls, or marbles, strike pins, springs or slots this creating a score which is shown upon the board being a part of the device, no prizes are automatically offered, or paid in any sum neither is there any cash, merchandise, checks or other things of value given, offered or obtained for the player of same, but the player plays said device for his own temporary amusement and no inducement is held out to him whereby he may obtain or lose anything of value on account of playing said machine, as aforesaid.

4. The said A. Garland Marrs, as Sheriff of Tulsa County, Oklahoma, asserts that he was authorized and directed and under duty to seize said marble, pin and ball machines and to destroy the same by and under the provision of House Bill No. 125, of the Seventeenth Legislature of the State of Oklahoma.

5. Your petitioner was summarily arrested by said A. Garland Marrs, as Sheriff of Tulsa County, and his deputies, without a warrant, or other authority of Law and was immediately taken to the County Jail in Tulsa County and there incarcerated without a warrant or commitment so to do and shortly after his said incarceration he was charged in the Common Pleas Court of Tulsa County by an information filed therein with having violated Section 7, of House Bill No. 125, of the Seventeenth Legislature of the State of Oklahoma, a copy of which said information is filed herewith marked Exhibit "A" and made a part hereof the same as if written out in full and copied herein at length.

That thereafter, and on the said 15th. day of May, 1939, your petitioner was, by the said A. Garland Marrs, Sheriff of Tulsa County, and his deputies taken before the Honorable Wm. N. Randolph, one of the Judges of the Common Pleas Court and there arraigned upon said information and at his arraignment he interposed a demurrer to said information objecting to the jurisdiction of the court and to the statute under which said charge was filed as unconstitutional and void; a copy of the proceedings in the Common Pleas Court is filed herewith marked Exhibit "B"; which demurrer was by the court overruled and the petitioner was then committed to the County Jail, a copy of which commitment is hereto attached marked Exhibit "C" and made a part of this petition the same as if written out in full and copied herein at length.

6. Petitioner alleges that House Bill No. 125, of the Seventeenth Legislature of the State of Oklahoma, and under which Act he is unlawfully charged and restrained of his liberty, is unconstitutional, void and of no force and effect for the following reasons, to-wit:

1. That said Act is indefinite and uncertain to the end that it is impossible to ascertain the legislative intent and its application is so general in its terms so as to render it capable of an arbitrary and capricious application.

2. That said Act is repugnant to and violates Section 7 of Article 2, of the Constitution of the State of Oklahoma, in that it amounts to the taking of property without the due process of law.

3. That said Act is repugnant to and in violation of Section 19, of Article 2, of the constitution of the State of Oklahoma in that it denies the right of a trial by jury.

4. That the same is contrary to and in violation of Section 57, of Article 5 of the Constitution of the State of Oklahoma in that the subject of said Act is not clearly expressed in its title and embraces more than one subject.

5. That the same sets up arbitrary and unreasonable presumptions in that in effect charges peace officers with notice of violation of the gambling laws of the State of Oklahoma, irrespective of whether or not said peace officer had actual knowledge or notice thereof.

6. Said Act is further void and of no force and effect for the reason that the same was not properly enrolled upon the Journal of the Senate and House of Representatives of the State of Oklahoma and no roll call had thereon in the manner as by law provided.

7. A true and correct copy of said House Bill No. 125, is hereto attached, marked Exhibit "C" and made a part hereof, the same as if written out in full and copied herein at length.

Wherefore, your petitioner prays this Honorable Court to grant a writ of habeas corpus and that he be discharged without delay from such unlawful imprisonment.

W. H. Davis,

By his Attorneys: Coffey & Coffey."

Exhibit "A", copy of the information attached thereto, omitting verification, is as follows:

"In the Court of Common Pleas Within and

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