Ex parte Flowers

• Decision Date: 25 May 1909
• Citation: 101 P. 860,2 Okla.Crim. 430,1909 OK CR 69
• Parties: Ex parte FLOWERS.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

101 P. 860

2 Okla.Crim. 430, 1909 OK CR 69

Ex parte FLOWERS.

Court of Criminal Appeals of Oklahoma

May 25, 1909

Syllabus by the Court.

A writ of habeas corpus will not be allowed, when the petitioner has an adequate remedy by appeal.

[Ed Note.-For other cases, see Habeas Corpus, Cent. Dig. § 4; Dec. Dig. § 4. ^[*] ]

An information, based upon a sworn affidavit, or sworn testimony filed in the county court, charging the commission of a misdemeanor, is sufficient to give such court jurisdiction of the subject-matter of such charge.

[Ed Note.-For other cases, see Indictment and Information, Cent Dig. § 165; Dec. Dig. § 41. ^[*]]

Under the laws of this state no particular form of affidavit charging the commission of a misdemeanor is prescribed. Such affidavit sufficiently complies with the requirements of the statutes when it substantially states an offense defined by the statutes, and such affidavit is sufficient to base an information upon, provided that the information predicated on such affidavit is positively sworn to by the county attorney.

[Ed Note.-For other cases, see Indictment and Information, Cent Dig. § 165; Dec. Dig. § 41. ^[*]]

Original petition by Arthur Flowers for a writ of habeas corpus. Writ denied.

In his duly verified petition Arthur Flowers alleges that he is restrained of his liberty, and is unlawfully imprisoned at Claremore, in Rogers county, by Hiram Stephens, sheriff of said county, and that the cause of said restraint, according to his best knowledge and belief is that on the _____ day of _____, 1909, the county attorney of said Rogers county requested the county judge of said county to subpoena witnesses before the said county judge, for the purpose of inquiring into whether or not the prohibitory law of this state had been violated, and that one P. Fisher was subpoenaed before said court, and gave evidence as follows:

"Q. Mr. Fisher did you, at any time, at Chelsea buy any intoxicating liquor from Arthur Flowers? A. Yes, sir. Q. When and what was that? A. I bought whisky from him at two different places; one known as the 'Squirrel Joint' and at the new place. Q. About what day was it? A. I have bought so many times I hardly know. I think a couple of days before last Saturday. Q. Who was present? A. Sid Fletcher, Taylor Goin, Jim Kell. I paid Arthur Flowers for the drinks that day. It was Budweiser beer. This was at the new place, the skating rink, Chelsea, Rogers county, Okl. P. Fisher.

"Sworn and subscribed to before me this March 11, 1909. Archibald Bonds, County Judge."

He also alleges that upon said evidence the county attorney, Wm. M Hall, who prosecutes in behalf of Rogers county, filed his information in the county court of said county, accusing the petitioner of the offense of selling intoxicating liquors, which information was (omitting the formal parts) in the following words: "Be it remembered that W. M. Hall, county attorney in and for the county of Rogers, state of Oklahoma, who prosecutes in the name and by the authority of the state of Oklahoma, comes here in person into the county court of the said county, this 11th day of March, A. D. 1909, and upon the evidence of P. Fisher had and obtained an order of the county court in and for Rogers county, Oklahoma, duly subscribed and sworn to by him, as provided by law, and the same is hereto attached, marked 'Exhibit A,' and made a part hereof, gives the court to understand and be informed that on or about the 4th day of March, A. D. 1909, in the county of Rogers, state of Oklahoma, one Arthur Flowers, then and there being, did then and there willfully and unlawfully sell spirituous, vinous, and fermented liquor to P. Fisher, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state. Wm. M. Hall, County Attorney." The verification of said information is as follows: "Personally appeared before me, J. M. York, clerk of the county court, within and for the county of Rogers and state of Oklahoma, W. M. Hall, of lawful age, who being duly sworn upon his oath states: 'That he is the county attorney of said county, that he has read the foregoing information, and knows the contents thereof, and that the facts and allegations therein contained are true."' That upon said information a warrant was issued, and the petitioner arrested, and on the 10th day of April, 1909, was tried in the county court by a jury, who rendered a verdict of guilty against him. That at the time the petitioner was arraigned in said court he excepted to said information, for the reason it was not duly verified, and filed his motion to quash said information on the grounds that the evidence upon which the same was based was illegally obtained, and without authority of law, which motion or plea in abatement alleges, in substance, as follows: That there was no affidavit to support the information herein; that the information is supposed to be based upon evidence taken before the county judge of said county by witnesses brought before said court, under section 4 of the prohibition enforcement act of this state (Laws 1907-08, p. 604, c. 69), and that there was no information filed with said court charging any person with a violation of the provisions of said enforcement act, and that the witnesses brought before said court were not there at the request of the county attorney, and that the evidence that was obtained was without authority of law and by force, and is therefore not sufficient to base an information upon; that there was no charge pending before said county judge against the petitioner supported by the affidavit of any person, nor was the request of the county attorney of said county supported by affidavit, nor does the record in said court disclose the fact that any subpoena was issued, and that there was no cause pending before said court which would have authorized the county court to have issued subpoenas for witnesses; that the whole of said evidence was illegally obtained, and wholly insufficient to base a complaint or information upon. Petitioner prays that he may be dismissed from custody. A writ of habeas corpus issued out of this court commanding the sheriff of said county to have the body of said petitioner in this court on the 24th day of April, 1909. In answer to this writ said sheriff made return, stating, in substance, that the body of the petitioner was placed in his custody on the 14th day of April, 1909, and that the petitioner is now held in custody by him by virtue of an order of commitment, duly issued under the seal of the county court of Rogers county, commanding him to imprison the petitioner in the jail of said county. He attaches a copy of said commitment to his return. Said sheriff, in obedience to said writ of habeas corpus, produces the body of said petitioner before this court to be dealt with according to law. The order of commitment is in the usual form, and recites that on the 10th day of April, 1909, Arthur Flowers was brought before the county court of ...