Miller v. United States

• Decision Date: 15 June 1899
• Citation: 8 Okla. 315,57 P. 836,1899 OK 60
• Court: Oklahoma Supreme Court
• Parties: GEORGE W. MILLER v. THE UNITED STATES

1899 OK 60

57 P. 836

8 Okla. 315

GEORGE W. MILLER v. THE UNITED STATES

Supreme Court of Oklahoma

Decided: June 15, 1899

SYLLABUS

¶0 1. CONSTITUTIONAL LAW--Warrant--Void Statute. The fourth article of the amendments to the constitution of the United States provides that "no warrant shall issue but upon probable cause, supported by oath or affirmation;" and therefore an act of the legislature which provides that a warrant may issue upon a complaint which has been verified by a county attorney only upon information and belief, and that a warrant for the arrest of the party charged therein may issue thereupon, is null and void.

2. COMPLAINT--Verification. A statement that the affiant is informed and believes the facts stated in the complaint to be true is no more than the expression of an opinion, and one which may conscientiously be made, and yet prove nothing, and be based upon no facts or knowledge.

3. INFORMATION--Evidence. The facts themselves upon which the warrant should issue ought to be presented to the magistrate by affidavit or competent evidence, and not merely to the person who makes the accusation.

4. CRIMINAL CAUSE--Continuance--Error. The information in this case was filed December 1, 1897, the defendant was arrested at noon December 2, 1897, and first brought into court at 5 o'clock on that day, and, without the opportunity of consulting counsel, answered that he was not guilty, when his case was set down for hearing on the following morning at 9 o'clock. His counsel, to whom he telegraphed, reached Perry, where the court was held, at midnight of December 2, and he had no access to the information or proceedings in the case until 9 o'clock on the morning of December 3, when the case was set for trial. His application for a continuance showed the existence of testimony material to his defense. Subpoenas were issued for him on the morning of December 3, as soon as his counsel could get them issued, but the court refused to give him further time, the United States attorney having announced that he was ready for trial, and the trial was thereupon immediately proceeded with. Held, that this was error.

STATEMENT OF THE CASE.

This was an information filed by the United States attorney on the 1st day of December, 1897, in the district court of Noble county, charging the appellant and one James Arnold with the theft of a cow in the Indian country, attached to Noble county for judicial purposes, and charging that the cow was the property of P. S. Witherspoon and James Beattie. The information was verified by "Roy Hoffman, who, being first duly sworn, on his oath says that he is informed and believes that the statements contained in the above information are true." The defendant Miller was arrested on December 2, taken to Perry, and on the evening of that day was arraigned, without counsel, and entered a plea of not guilty. On the 3d day of December the defendant filed his motion for a continuance, which set forth material testimony of witnesses whom he had reason to believe he could procure if he had time to procure them, to be used at the hearing, and, the court having given leave to the defendant to withdraw the plea of not guilty, a motion was filed to set aside the information, which, together with the motion for continuance, were overruled by the court. It appeared from the application for continuance, upon the oath of the defendant, that he was not arrested on this charge until December 2, 1897, at 12 o'clock, noon; was brought immediately to the court at Perry, and that about the hour of 5 o'clock, before he had an opportunity to obtain counsel or confer with his attorneys, he was brought into court and arraigned at the bar to answer to the charge in the information; that to the information he said he was not guilty, and thereupon the case was set down for hearing the next morning, December 3, 1897, at 9 o'clock; that as soon as he was arrested he had sent for his attorney, but that, the train being late, his attorney did not arrive at the city of Perry until midnight of December 2, 1897, and had had no opportunity to examine the papers in the case until the court opened on the morning of December 3, 1897. He said that George Tignor, who resided in the state of Louisiana, and William Estes, who resided in the state of Missouri, and G. W. Carson, who had a lease in the Ponca reservation but who resided at Rocky Comfort, Mo., where he now is, and George Miller, Jr., and W. T. Miller and Harry Kendall, who resided in the Ponca reservation, were material witnesses in his behalf, and were absent without his procurement or consent; that Tignor would testify, if present, that he was in the Territory in the months of June and July, 1897, at the time of the alleged larceny, and that he was informed by the defendant Miller that a beef, the cow alleged to have been stolen, was hanging at some distance from them, and that they together joined in an investigation of the matter; that Carson, if present, would testify that he was at the ranch headquarters of the defendant Miller at the time in question, and knew that Miller was at his ranch on the afternoon and evening of the day of the taking, and had no knowledge thereof; that George Miller, Jr., and W. T. Miller, if present, would testify that the defendant Miller was present at his own ranch, and not over on that part of the ranch where the beef which was stolen was found, during the afternoon or evening of the day it was said to have been killed. The application for continuance further showed that the witnesses could all be procured if time was given, and that the testimony they would give was true, and that, if the cause was continued, the defendant would have all the witnesses present at the trial.

A demurrer to the information was also overruled, and exceptions reserved to each ruling. Process had been issued at the time of the application for a continuance for witnesses residing within the Territory, which had not yet been returned. The court refused to stay the proceedings or grant further time until the marshal could make a return upon the subpoenas issued upon the 3d day of December, and the case proceeded to trial upon that day, and was given to the jury, which returned a verdict on the morning of the 4th of December; whereupon the case was immediately set down for judgment upon the morning of the 6th (the 5th being Sunday,) when the defendant was sentenced to pay a fine of $ 300, and to be confined in the federal jail for the period of six months.

The defendant Arnold was an employe of the plaintiff in error, represented himself as an accomplice with the appellant in the commission of the offense sought to be charged, and made what purported to be a confession, implicating the appellant in the commission of the offense with himself. Before going to trial, the defendant in error was permitted to amend the information in such a manner as to show that the cow alleged to have been stolen was not the property of the persons charged in the information, but was the property of P. S. Witherspoon, F. Witherspoon, and James Beattie jointly, which was also verified upon information and belief only.

Error from the District Court of Noble County; before A. G. C. Bierer, District Judge.

Pollock & Lafferty, for plaintiff in error.

S. L. Overstreet, United States Attorney, for defendant in error.

George W. Miller was convicted of larceny, and brings error. Reversed.

MCATEE, J.:

¶1 The first proposition argued in the brief of the appellant upon the assignments of error is that the trial court erred in overruling the motions to set aside the demurrers to the information and amended information, for the reason that there was no verification except that which was made by Mr. Hoffman, who was the assistant United States attorney, upon information and belief. It is provided in article 4 of the amendments to the constitution of the United States that "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized."

¶2 It has been repeatedly and invariably held by the supreme court of the United States and by the supreme courts of the various states, so far as we have been able to find, that the provisions of the guaranty that warrants shall not issue but upon probable cause supported by oath or affirmation, is not meant to be an oath which is made upon information and belief, and that such an affidavit merely expresses the private opinion of the informant. The point appears to have been covered in Ex parte Burford, 3 Cranch 448, 2 L. Ed. 495, by Chief Justice Marshall, in an opinion which indicates that, as to the oath prescribed in article 4 of the amendments to the constitution of the United States, in order to justify an arrest, the...