Fossett v. State

• Citation: 245 P. 668,34 Okla.Crim. 106
• Decision Date: 10 April 1926
• Docket Number: A-6044.
• Parties: FOSSETT v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

245 P. 668

34 Okla.Crim. 106

FOSSETT v. STATE.

No. A-6044.

Court of Criminal Appeals of Oklahoma

April 10, 1926

Syllabus by the Court.

The provisions of the charter of Oklahoma City adopted under the authority of section 3A, art. 18, of the Constitution and section 4508, Comp. St. 1921, supersede the state laws in conflict with such charter provisions only in so far as such laws relate to purely municipal matters.

The manner of taking an appeal from a conviction in the municipal court to the county court is not a matter of purely municipal concern, but a matter of general concern, in which the state has a sovereign interest, and, in case of conflict between the provisions of the charter with the general laws of the state, such laws will prevail.

Section 3, c. 127, Session Laws 1917 (section 4654, Comp. St. 1921) gives a right of appeal upon the filing of a written "demand" and without the filing of an appeal bond. The written demand therein provided for may be incorporated in the appeal bond.

(a) Held, that the appeal bond filed in this case contains a sufficient demand to meet the requirement of the statute.

Additional Syllabus by Editorial Staff.

"Demand" means to ask, to claim.

"Desire" means to ask, to request.

Appeal from County Court, Oklahoma County; Jas. C. Cheek, Judge.

Sadie Fossett was convicted of vagrancy, and she appeals. Reversed and remanded, with instructions.

Morris & Tant, of Oklahoma City, for plaintiff in error.

John Frank Martin, Bliss Kelly, and R. E. Wood, all of Oklahoma City, for the City.

EDWARDS J.

The plaintiff in error, hereinafter called defendant, was charged under a city ordinance, in the municipal court of Oklahoma City, with the offense of vagrancy, was convicted and sentenced to pay a fine of $19 and costs amounting to $1. Within ten days she filed an appeal bond, and the record was properly sent to the county court. The case came on for hearing in the county court, and upon motion of the municipal counselor the appeal was there dismissed, for the reason that no written notice or demand had been given by defendant in the court below. The record was properly preserved, and the case duly brought to this court by appeal.

There is presented then for our determination this question: Is it necessary for a defendant, in order to perfect an appeal from the municipal court of Oklahoma City to the county court to file in the municipal court a written demand for such appeal?

Oklahoma City is operating under a commission form of government, with a charter drawn and adopted as provided by section 3A, art 18, of the Constitution. Section 30 of the charter provides the manner of appeal from convictions in the municipal court:

"30. All persons who shall be accused or informed against, tried and convicted in the municipal court are hereby granted the right of appeal within ten days to the county court of Oklahoma county, where a trial in said county court shall be accorded them, de novo, and, in order to perfect such appeal, the party intending to appeal from the judgment of the municipal court or judge shall within said ten days file with and cause to be approved by said municipal court or judge an appeal bond in a sum to be fixed by the court, not less than fifty dollars, nor more than two hundred dollars in any one case, conditioned," etc.

Section 4508, Comp. Stat. 1921, provides that the charter shall prevail where there is a conflict between the charter and the laws of the state except as to general laws. It reads:

"When a charter for any city of this state shall have been framed, adopted and approved according to the provisions of this article, and any provisions of such charter shall be in conflict with any law or laws relating to cities in force at the time of the adoption and approval of such charter. the provisions of such charter shall prevail and be in full force notwithstanding such conflict, and shall operate as a repeal or suspension of such state law or laws to the extent of such conflict; and such state law or laws shall not thereafter be operative in so far as they are in conflict with such charter: Provided, that such charter shall be consistent with and subject to the provisions of the Constitution, and not in conflict with the provisions of the Constitution, and laws relating to the exercise of the initiative and referendum and other general laws of the state not relative to cities of the first class." The Constitution (section 3A, art. 18) provides that the charter shall not be in conflict with the Constitution and the statutes of the state, and it is held that, where charter provisions conflict with the general laws of the state in matters purely municipal, the charter shall supersede the laws of the state in conflict therewith. Walton v. Donnelly, 201 P. 367, 83 Okl. 233; State ex rel. Burns v. Linn, 153 P. 826, 49

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