Ex parte Dodson

• Citation: 107 P. 450,3 Okla.Crim. 514,1910 OK CR 56
• Parties: Ex parte DODSON. Ex parte PARRIS. Ex parte WALKER.
• Decision Date: 28 February 1910
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

107 P. 450

3 Okla.Crim. 514, 1910 OK CR 56

Ex parte DODSON. Ex parte PARRIS. Ex parte WALKER.

Court of Criminal Appeals of Oklahoma

February 28, 1910

Syllabus by the Court.

The provision of Procedure Criminal, section 6751, Snyder's St.: "If the demurrer is sustained, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same offense, unless the court being of opinion that the objection on which the demurrer is sustained may be avoided in a new indictment, direct the case to be resubmitted to the same or another grand jury"--has no application to misdemeanors prosecuted by indictment, transferred to a county court.

Where a demurrer is sustained to an indictment, charging a misdemeanor, the county court has no power or authority to commit the defendant to await the action of a grand jury.

The sustaining of a demurrer to an indictment, charging a misdemeanor, is no bar to a subsequent prosecution by information for the same offense.

Applications of Wallace Dodson and others for a writ of habeas corpus. Writ denied, and petitioners remanded to custody.

Owen J., dissenting.

Where a demurrer is sustained to an indictment, charging a misdemeanor, the county court has no power or authority to commit the defendant to await the action of a grand jury.

The petitioners, Wallace Dodson, Henry Parris, and Fred Walker on December 7, 1909, filed in this court their separate petitions, each duly verified, wherein each avers that he is unlawfully restrained of his liberty by one James S. Sanders sheriff of Cherokee county, at and in the common jail of said county. And for the reasons stated in said petitions, each petitioner prays that a writ of habeas corpus be allowed, and that he be discharged from such unlawful imprisonment. On said date there was also filed an agreed statement of facts, as follows:

"Agreed Statement of Facts.

"It is hereby stipulated and expressly agreed by and between J. I. Coursey, county attorney of Cherokee county, state of Oklahoma, and W. P. Thompson and Preston S. Davis, attorneys for the petitioners herein, as follows, to wit:

"That the petitioner Wallace Dodson was indicted by the grand jury at the September term of the district court of Cherokee county, Okl., charging him with the sales of intoxicating liquors at various times within said county and state; said indictments being numbered in said court as follows, to wit: 285, 359, 358, 283, 286, 356, 278, 215, 360, 361, 284, 282, 357, 281, 363, and 364. That thereupon said district court transferred to the county court of Cherokee county the above-numbered cases, together with all the papers and a portion of the proceedings therein, which were filed in the county court, and numbered upon the criminal docket of said county court, respectively, as follows: 521, 584, 519, 522, 582, 514, 452, 586, 587, 520, 518, 583, 517, 589, and 590.

"That the petitioner Henry Parris was indicted by the grand jury at the September term of the district court of Cherokee county, Okl., charging him with the sales of intoxicating liquors at various times within said county and state; said indictments being numbered in said court as follows, to wit: 236, 235, 237, 238, 240. That thereupon said district court transferred to the county court of Cherokee county the above-numbered cases, together with all the papers and a portion of the proceedings therein, which were filed in the county court, and numbered upon the criminal docket of said county court, respectively, as follows: 472, 471, 473, and 476.

"That the petitioner Fred Walker was indicted by the grand jury at the September term of the district court of Cherokee county, Okl., charging him with the sales of intoxicating liquors at various times within said county and state; said indictments being numbered in said court as follows, to wit: 246, 346, 253, 347, 348, 345, 247, 249, 251, 250, 254, 352, 351, 353, 206, 241, 350, 245, 244, 243, 242, and 340. That thereupon said district court transferred to the county court of Cherokee county the above-numbered cases, together with all the papers and a portion of the proceedings therein, which were filed in the county court, and numbered upon the criminal docket of said county court, respectively, as follows: 482, 572, 489, 573, 574, 571, 483, 484, 487, 486, 490, 578, 579, 443, 477, 576, 481, 480, 479, 478, and 566.

"That thereafter warrants were duly issued and served upon the petitioners in each of the above-enumerated causes, and thereafter said petitioners were admitted to bail, and that said causes coming on to be heard in the said county court, and said petitioners being called upon to enter their pleas to the said indictments on the 12th day of November, A. D. 1909, interposed and filed in each of the said several causes a demurrer to the indictment; the grounds contained and set forth in each of the said several demurrers in each of the said above-enumerated causes being identically the same. A copy of one of said demurrers is hereto attached, herewith filed, marked 'Exhibit A,' and made a part hereof.

"That thereafter, and upon the 17th day of November, 1909, said demurrers came on to be heard before said county court, and the same were duly argued, pro and con, and thereafter on the 19th day of November, 1909, the court sustained each and all of said demurrers to said indictments in said cause, and entered his order to that effect upon the minutes of the court in each of the above-enumerated causes; said order being the same in each case, a copy of which taken from said minutes being hereto attached, herewith filed, and marked 'Exhibit B,' and made a part hereof. That said court thereupon discharged the petitioner in each and every case and exonerated their bail therein. That said court did not enter any order whatever directing the case to be resubmitted to the same or to another grand jury.

"That before the defendant left the courtroom after these proceedings had been had as aforesaid, the county attorney filed informations charging these petitioners with the same offenses as were charged in the indictments herein above mentioned and enumerated; said informations against petitioner Wallace Dodson being numbered as follows, to wit: 682, 686, 689, 697, 698, 699, 700 701, 702, 703, 704, 705, 720, 721, 722--which said enumerated informations correspond respectively to the indictments charging these same offenses that had been set aside as aforesaid by said court and which were numbered in said county court as stated and set forth herein above. That a compared list, showing the number of the present informations, the number of the indictments in the county court, and the number of the indictments in the district court, and the name of the party to whom the liquor was charged to have been sold, and the dates of said sales for each of said petitioners in these said several enumerated causes herein, is hereto attached, herewith filed, marked 'Exhibit C,' and made a part hereof.

"That the same proceedings were had as to the petitioners Henry Parris and Fred Walker as were had in the cases against the petitioner Wallace Dodson, as set forth herein above; the informations against Henry Parris being numbered 679, 694, 715, 716, and 717, and the informations against Fred Walker being numbered 683, 687, 706, 707, 708, 709, 710, 711, 712, 713, 714, 732, 733, 734, 735, 736, 737, 738, 739, 740, 741, 742, 743, and 744.

"That upon these informations aforesaid warrants were duly issued, and the defendants then and there arrested in the courtroom on the said 19th day of November, 1909, and the defendants, being unable to give a bond of $500, which was required by the court in each case, were committed by the court to jail.

"It is further agreed that the petitioners herein are held by James S. Sanders, sheriff of Cherokee county, Okl., by virtue of commitments issued to him on the above informations and the warrants issued thereon in each of the above-numbered cases in the said county court out of the said county court of said county, which commitments are regular on their face, commanding the said sheriff that he hold the said petitioners in default of bail in each of the above-enumerated causes, and that said petitioners were duly incarcerated in the county jail of Cherokee county, Okl., where they have been confined since the said 19th day of November, 1909.

"It is hereby agreed that the personal attendance of the petitioners herein, Wallace Dodson, Henry Parris, and Fred Walker, before the Criminal Court of Appeals, on the hearing upon these petitions for writs of habeas corpus, is waived. That the personal appearance and attendance of the sheriff of Cherokee county, Okl., James S. Sanders, is also waived.

"It is further agreed and understood that the issuance of the preliminary writ of habeas corpus may be waived, and that the matters for each of said petitioners may be set down for hearing upon the merits as to whether they be finally discharged upon writs of habeas corpus by the Criminal Court of Appeals, on the 6th day of December, A. D. 1909.

"It is hereby agreed that the above agreed statement of facts may be taken and considered in each and every of the cases herein above set forth and enumerated, and that the decision of the Criminal Court of Appeals in one of the causes shall be taken and entered of record in each of said enumerated cases herein.

"Witness our hands this the 3d day of December, A. D. 1909, at Tahlequah, Okl. J. I. Coursey, County Attorney for Cherokee County, Oklahoma. W. P. Thompson and Preston S. Davis, Attorneys for the Petitioners."

"Exhibit A.--Demurrer to Indictment.

"Comes now the defendant and moves to set aside the indictment in this cause, for the following reasons:

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