Ex parte Larkins
| Decision Date | 07 February 1891 |
| Parties | Ex parte LARKINS |
| Court | Oklahoma Supreme Court |
Habeas corpus.
¶0 1. TERRITORIAL LEGISLATURE--Powers--Under Organic Act Okla. T. § 6, providing that the legislative power of the Territory shall extend to all rightful subjects of legislation not inconsistent with the laws and constitution of the United States, it is competent for the legislature to continue in force, after the adjournment of the First legislature, the Criminal Code of Nebraska, extended to the Territory by the organic act, § 11, until the adjournment of the first session of the legislature.
2. EX POST FACTO LAW--Act 1st. Assem. Okla. T., § 1, continuing in force the Criminal Code of Nebraska, which, by the organic act, was extended to that Territory till the adjournment of the first session of the legislature, is valid, and not ex post facto, as to offences already committed, but not prosecuted and punished.
Thurston & Merrick, for petitioner.
Chas. Brown and C. B. Freeman, for the Territory.
The opinion of the court was delivered by
¶1 This is a petition in this court for a writ of habeas corpus. The writ was issued, directed to the sheriff of Logan county, who brought the body of the petitioner into court, together with the cause of his caption and detention.
¶2 It appears from the petition and return, that the petitioner was indicted by the grand jury of Logan county, at the September term, 1890, of the district court, for the crime of incest and rape upon the person of his daughter, Della Larkin, and that he was taken upon a capias issued on that indictment, and, in default of bail, was committed to the common jail to await his trial.
¶3 The ground upon which his discharge from imprisonment is asked is, that the indictment is for an offense against the criminal code of the state of Nebraska, which was extended to and put in force in the Territory of Oklahoma, by the organic act, until after the adjournment of the first session of the legislative assembly of said Territory, which occurred at the close of the 24th day of December, 1890; and, inasmuch as the law creating the offense has expired, there can be no trial, conviction and judgment upon the indictment; and that the legislative assembly had no power to continue the law in force as to crimes already committed against it and prosecutions pending therefor.
¶4 Before the adjournment of the first session of the legislative assembly, an act was passed and approved, which provides, inter alia, as follows:
The last section of the act provides, that it shall take effect, and be in force, from and after the adjournment of the first session of the legislative assembly.
¶5 Section eleven of the organic act, which extends to and puts in force, in the Territory of Oklahoma, the criminal code of the state of Nebraska, so far as necessary to be stated, has the following provisions:
"That the following chapters and provisions of the compiled laws of the state of Nebraska, in force November first, eighteen hundred and eighty-nine, in so far as they are locally applicable, and not in conflict with the laws of the United States or with this act, are hereby extended to and put in force in the Territory of Oklahoma, until after the adjournment of the first session of the legislative assembly of said Territory."
But no saving clause, or provision, is made in the organic act, as to crimes committed and prosecutions pending, at and before the adjournment of the first session of the legislative assembly.
¶6 It is very clear, upon principle and authority, that if the act of the legislative assembly, continuing in force the criminal code of Nebraska, as to all crimes committed, and prosecutions pending under it, has no validity to accomplish what was proposed by it, the petitioner cannot be further prosecuted for the crime charged against him in the indictment, and should be discharged from his imprisonment.
¶7 Sir Mathew Hale, in his history of the Pleas of the Crown, states the rule of the common law, that when an offense is made treason or felony by an act of Parliament, and then the act is repealed, the offenses committed before such appeal, and the proceedings thereupon, are discharged by such repeal, and cannot be proceeded on after such repeal, unless a special clause in the act of repeal is made, enabling such proceedings, after the repeal, for offenses committed before the repeal. (Pleas of the Crown, vol. 1, p 291.)
¶8 The law, as stated by this learned author, has been steadily adhered to in England and in this country; and has been held and applied in innumerable cases, a few only of which it is necessary to cite.
¶9 In the cases of Yeaton v. The United States, 5 Cranch 281, 3 L. Ed. 101, and The Schooner Rachel v. The United States, 6 id., 329, judgment of forfeiture upon proceedings in admiralty had been pronounced in the court of original jurisdiction, before the repeal of the statutes which gave the forfeiture, and both judgments were reversed, on account of such repeal, by the supreme court. In the first case, Chief Justice Marshall said:
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- Ex parte Larkins