Keeter v. State

• Decision Date: 31 May 1921
• Docket Number: 9915.
• Citation: 198 P. 866,82 Okla. 89,1921 OK 197
• Parties: KEETER v. STATE EX REL. SAYE, CO. ATTY.
• Court: Oklahoma Supreme Court

198 P. 866

82 Okla. 89, 1921 OK 197

KEETER v. STATE EX REL. SAYE, CO. ATTY.

No. 9915.

Supreme Court of Oklahoma

May 31, 1921

Syllabus by the Court.

The right to trial by jury, declared inviolate by section 19 art. 2, of the Constitution of Oklahoma, except as modified by the Constitution itself, has reference to the right as it existed in the territories at the time of the adoption of the Constitution, and the right to a jury trial therein referred to was not predicated upon the statutes existing in the territories at that time, but the right as guaranteed under the federal Constitution and according to the course of the common law.

Section 2, c. 188, Laws 1917, which provides, "The court having jurisdiction of the property so seized shall without a jury order an immediate hearing as to whether the property so seized was being used for unlawful purposes, and take such legal evidence as is offered on each behalf and determine the same as in civil cases," is repugnant to the Seventh Amendment of the federal Constitution of the United States and section 19, art. 2, of the Constitution of the state of Oklahoma, because it violates the provisions of said Constitution guaranteeing the right of trial by jury, and is therefore void to the extent that it abridges the right of trial by jury.

In an action for the forfeiture of property under chapter 188, Laws 1917, wherein the claimant of said property, or party interested in the same, files proper pleading, raising an issue of fact sufficient to constitute a defense to a right of the state to forfeit said property, such party is entitled to a jury trial, and it being provided in said act that the court may determine said action as a civil case authorizes the court to proceed with said cause as provided for the trial of any other civil action.

In an action to forfeit an automobile, under chapter 188, Laws 1917, where the evidence introduced on behalf of the state fails to show that said automobile was used in transporting prohibited liquor from one place to another in this state, as provided in section 1 of said act, and that the claimant, at the close of the evidence introduced by the state, demurs to the evidence, it is the duty of the trial court to sustain the demurrer and dismiss the action. The evidence in this cause examined; held insufficient to support the judgment of the court.

Appeal from District Court, Jefferson County; Cham Jones, Judge.

Action by the State, on the relation of Ben F. Saye, County Attorney, to forfeit one Hudson Super-six Automobile, wherein Lester Keeter is claimant. Judgment of forfeiture, and claimant appeals. Reversed and remanded, with directions to dismiss.

Kane Johnson, and McNeill, JJ., dissenting.

Bridges & Vertrees and J. H. Harper, all of Waurika, for plaintiff in error.

KENNAMER J.

This action was instituted in the county court of Jefferson county by the county attorney of said county on the 28th day of October, 1917, to forfeit to the state of Oklahoma one "Hudson Super-six automobile." The material part of the petition filed in this proceeding is as follows, to wit:

"That on the 26th day of October, 1917, the said Hugh Treadwell and George Allman seized and took into their possession and custody one Hudson Super-six automobile, No ____; that at the time it was so seized it was being used by one Lester Keeter, herein defendant, to convey intoxicating liquor into Jefferson county, state of Oklahoma, in violation of the prohibitory laws of the state of Oklahoma; that such conveyance occurred in the presence of said affiant and the said George Allman at the ferry on Red river, about five miles southwest of the city of Waurika, Jefferson county, Okl."

Lester Keeter filed answer and interplea to the petition, alleging that he was the owner and entitled to the immediate possession of the car in controversy, denying that he had ever used the same in violation of the prohibitory laws of the state of Oklahoma, alleging the value of the car to be $1,750. The cause was transferred to the district court, and on the 3d day of November, 1917, said cause was called for trial before Hon. Cham Jones, district judge, and the state appeared by Ben F. Saye, county attorney, and announced ready for trial; the claimant and interpleader, Lester Keeter, appeared in person and by his attorneys moved the court to grant the claimant a trial by jury of the controverted issues in the cause, which demand was by the court overruled, and claimant excepted. After the introduction of the testimony on behalf of the state the claimant demurred to the testimony, which demurrer was by the court overruled and exceptions allowed. Judgment was entered forfeiting the car. The claimant, Lester Keeter, prosecutes this appeal. Two questions are presented for decision: First, did the court err in refusing to grant the claimant a trial of the controverted issues by a jury? Second, did the court err in overruling the claimant's demurrer to the testimony of the state? We will first consider the question presented on the right of trial by a jury by the claimant in this cause. This proceeding is prosecuted under chapter 188 of the Session Laws of 1917, which reads as follows:

"Section 1. All vehicles, including automobiles, and all animals used in hauling or transporting any liquor the sale of which is prohibited by the laws of this state, from one place to another in this state in violation of the laws thereof, shall be forfeited to the state by order of the court issuing the process by virtue of which such vehicle and animals were seized, or before which the persons violating the law, or the vehicles or animals are taken by the officer or the officers making the seizure.

Sec. 2. The court having jurisdiction of the property so seized shall without a jury order an immediate hearing as to whether the property so seized was being used for unlawful purposes, and take such legal evidence as are offered on each behalf and determine the same as in civil cases. Should the court find from a preponderance of the testimony that the property so seized was being used for the unlawful transportation of liquor under the laws of this state, it shall render judgment accordingly and declare said property forfeited to the state of Oklahoma. Thereupon, said property shall, under the order of said court, be sold by the officer having the same in charge after ten days' notice published in a daily newspaper of the county wherein said sale is to take place, or if no daily newspaper is published in said county, then by posting five notices in conspicuous places in the city or town wherein such sale is to be made. Such sales shall be for cash."

It is contended by counsel for the claimant, plaintiff in error in this cause, that section 2 of said act of the Legislature of 1917, supra, which denies to the claimant the right of a trial by jury, violates section 19, art. 2, of the Constitution of the state of Oklahoma, which is as follows:

"The right of trial by jury shall be and remain inviolate, and a jury for the trial of civil and criminal cases in courts of record, other than county courts, shall consist of twelve men; but, in county courts and courts not of record, a jury shall consist of six men. This section shall not be so construed as to prevent limitations being fixed by law upon the right of appeal from judgments of courts not of record in civil cases concerning causes of action involving less than twenty dollars. In civil cases, and in criminal cases less than felonies, three-fourths of the whole number of jurors concurring shall have power to render a verdict. In all other cases the entire number of jurors must concur to render a verdict. In case a verdict is rendered by less than the whole number of jurors, the verdict shall be in writing and signed by each juror concurring therein."

This court has heretofore construed section 19, supra, but upon a careful examination of the decisions we are convinced that the decisions construing said section are not in harmony. In the case of Baker v. Newton, 27 Okl. 445, 112 P. 1038, Mr. Justice Hayes, delivering the opinion of the court, said:

"The question therefore arises: What constitutes a trial by jury as guaranteed by the Constitution? This question has been under investigation by many courts of the nation, both state and federal, and there is unanimity in the opinions that the right of trial by jury secured by the Constitutions of the various states is simply the right to a trial by jury constituted substantially and with the same elements and incidents as existed when the Constitution was adopted. Carroll v. Byers et al. (Ariz.) 26 P. 599; State ex rel. v. Withrow, 133 Mo. 500; Byers v Commonwealth, 42 Penn. St. 89; Plimpton v. Somerset, 33 Vt. 283. 'The trial by jury secured to the subject by the Constitution is a trial according to the course of common law and the same in substance as that which was in use when the Constitution was formed.' East Kingston v. Towle, 48 N.H. 64. See, also, Copp v. Henniker, 55 N.H. 179; Hagany v. Cohnen et al., 29 Ohio St. 82. Judge Cooley, discussing these provisions, said: 'All the state Constitutions preserve the right of trial by jury, for civil as well as for criminal cases, with such exceptions as are specified, and which for the most part consist in such cases as are of small consequence, and are triable in inferior courts. The constitutional provisions do not extend the right; they only secure it in the cases in which it was a matter of right before. But in doing this, they preserve the historical jury of twelve men with all its incidents, unless a contrary purpose clearly appears.' Cooley's Constitutional Limitations, 589.

The territory now embraced within the territorial limits of the state

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