Gardner v. Lambert

• Decision Date: 11 July 1968
• Docket Number: No. A--14839,A--14839
• Citation: Gardner v. Lambert, 444 P.2d 235 (Okla. Crim. App. 1968)
• Parties: Gerry GARDNER, Petitioner, v. Judge Phillip LAMBERT, Judge of the Municipal Court of Record of Oklahoma City, State of Oklahoma, Respondent.
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 235

444 P.2d 235

Gerry GARDNER, Petitioner, v.Judge Phillip LAMBERT, Judge of the Municipal Court of Record of Oklahoma City, State of Oklahoma, Respondent.

No. A--14839.

Court of Criminal Appeals of Oklahoma.

July 11, 1968.

Mac Oyler, Oklahoma City, for petitioner.

Roy H. Semtner, City Atty., Irving L. Faught, Asst. City Atty., for respondent.

MEMORANDUM OPINION

LERBLANCE, Referee:

The Petitioner, Gerry Gardner, seeks a Writ of Prohibition against Phillip Lambert, Judge of the Municipal Court of Record of the City of Oklahoma City, State of Oklahoma, preventing said court from proceeding to try Petitioner on a charge of lewdness violating Oklahoma City OrdinanceNo. 11436.

It is the contention of the Petitioner that Respondent Judge is without jurisdiction for the reason that the ordinance involved is invalid, in that it conflicts with state statutes prohibiting lewdness, 21 O.S.1961, §§ 1029--1031.Petitioner urges that the city ordinance increases the punishment beyond that provided in the statestatutes which amounts to a conflict rendering the ordinance void under the rule announced in Johnson v. City of Tulsa, 97 Okl.Cr. 85, 258 P.2d 695.

It is the position of this Court as stated in Burns v. District Court of Oklahoma County, Okl.Cr., 335 P.2d 923, 924, that:

'The prerogative writ of prohibition should be issued with forbearance and caution, and only in cases of necessity, and not in doubtful cases.'

In the instant case the question raised herein has not been presented to the trial court and we cannot anticipate said court's action.If a conviction should result in the trial courtPetitioner may make a timely appeal to this court.Appellate courts should not interfere by writ of prohibition where a trial court has apparent jurisdiction and the...