Green v. State
| Decision Date | 20 February 1926 |
| Docket Number | A-5035. |
| Citation | 243 P. 533,33 Okla.Crim. 268 |
| Parties | GREEN et al. v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
The sustaining of a motion to quash, or a demurrer to an indictment charging a misdemeanor, is no bar to a subsequent prosecution by information for the same or any related offense.
By the act adopting the Revised Laws of Oklahoma 1910, as a General Code for the state (Laws 1910-11, c. 39), all laws therein contained were made valid, although the title to the acts by which they were originally adopted by the Legislature may have been insufficient.
Section 7022, Comp. St. 1921, defines the crime of maintaining a public nuisance, and in addition provides a method of proceeding against such nuisance by civil proceedings. It is not necessary under said section that there shall be an adjudication that a place is a public nuisance under the provisions for civil proceedings as a condition to prosecution for maintaining a nuisance under the criminal provisions of such section.
Evidence examined, and held sufficient to sustain the verdict.
Additional Syllabus by Editorial Staff.
Comp St. 1921, § 2604, relating to resubmission of case after quashing indictment or information, does not apply to indictments for misdemeanors.
Appeal from County Court, Caddo County; R. L. Lawrence, Judge.
Sam Green and Mary Green were convicted of maintaining a public liquor nuisance, and appeal. Affirmed.
Morgan & Osmond, of Anadarko, for plaintiffs in error.
Geo. F Short, Atty. Gen., for the State.
The defendants were informed against in the county court of Caddo county on a charge of maintaining a nuisance by operating a place where intoxicating liquors were kept for sale, and where persons congregate and resort for the purpose of drinking intoxicating liquors.
Defendants moved to quash the information, setting out that prior thereto they had been indicted by a grand jury of that county on a charge of violating the prohibitory liquor law in selling intoxicating liquors, and that the indictment upon motion had been quashed, and the defendants discharged, and no order to resubmit the same to another grand jury or for the filing of an information had been made. A copy of the indictment is attached to the motion with a copy of the order to quash. This motion to quash was overruled. A demurrer was then filed to the information, in which it was urged that the act under which the prosecution was instituted (section 13, c. 70, of the Session Laws 1910-11) is unconstitutional, as not being embraced in the title of the act. This demurrer also was overruled, and upon the trial defendants were convicted and sentenced to pay a fine of $250, and to confinement in the county jail for a period of 90 days.
It is first argued that the filing of the information upon which the prosecution was had after the indictment had been quashed, and without an order of the court directing the filing of an information, is in violation of the provisions of section 2604, Comp. St. 1921. This court has held that said section has no application to indictments for misdemeanors. In the case of Ex parte Dodson, 107 P. 450, 3 Okl. Cr. R. 514, it was said:
"The sustaining of a demurrer to an indictment, charging a misdemeanor, is no bar to a subsequent prosecution by information for the same offense."
In this case, however, the information upon which the defendants were tried charged an entirely separate and distinct offense from the offense charged in the indictment. So in no event could section 2604, supra, have any application.
It is next contended that the section under which the prosecution is had (i. e., section 7022, Comp. St. 1921) is unconstitutional, for the reason that in the original enactment of said section as a part of chapter 69 of the Session Laws 1907-08, the title did not embrace the subject-matter as required by section 57, art. 5, of the Constitution. We deem it unnecessary to determine whether or not the title of the act in question included the offense charged, for the reason that the section here challenged was embodied in the Laws of 1910, as revised and compiled by the Code commission, and was adopted along with the entire Code by the Act of March 3, 1911 (Laws 1910-11,...
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