Ray v. Stevenson

• Decision Date: 19 March 1941
• Docket Number: A-9995.
• Citation: 111 P.2d 824,71 Okla.Crim. 339
• Parties: RAY v. STEVENSON, County Judge.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

111 P.2d 824

71 Okla.Crim. 339

RAY v. STEVENSON, County Judge.

No. A-9995.

Court of Criminal Appeals of Oklahoma

March 19, 1941

Syllabus by the Court.

1. The writ of prohibition is a proper remedy to prevent an inferior court from proceeding in an action over the subject matter of which it has no jurisdiction.

2. As a general rule, the writ of prohibition may not be used to test the sufficiency of an information; but this is subject to qualification, that where the accusation is not merely defective or technically insufficient, nor merely demurrable or subject to a motion to quash or set aside, but is fundamentally defective in substance, so that it in no manner nor form charges a crime or where it appears that the information charges an offense not within the jurisdiction of the trial court, the accused is entitled to have a writ of prohibition issued.

3. Section 2869, O.S.1931, 22 Okl.St.Ann. § 383, which provides "The dismissal of the charge does not, however, prevent its being again submitted to a grand jury as often as the court may so direct. But without such direction it cannot be again submitted," pertains to a dismissal of a charge pending against a defendant at the time of the convening of a grand jury because of the nonconcurrence of at least nine grand jurors in an indictment against the accused, and does not pertain to a dismissal of an indictment by the trial court by motion of the state before any plea to the indictment is made by the accused.

4. Sections 2943, O.S.1931, 22 Okl.St.Ann. § 499; 2944 O.S.1931, 22 Okl.St.Ann. § 500; 2945, O.S.1931, 22 Okl.St.Ann. § 501; and 2952, O.S.1931, 22 Okl.St.Ann. § 508 outline the procedure to be followed by the trial court in connection with the sustaining of a motion to quash or demurrer to an indictment by a defendant upon his arraignment in the district court on a felony charge.

5. The above statutes apply only to felony cases, and do not apply in the case of misdemeanors for the reason that the county court is without authority to direct a case to be re-submitted to a grand jury.

6. The sustaining of a motion to quash or a demurrer to an indictment charging a misdemeanor is no bar to subsequent prosecution by information for the same or any related offense.

7. It is essential to the validity of an information under section 4491, O.S.1931, 63 Okl.St.Ann. § 545, charging a defendant not a physician, with undertaking to treat a person inflicted with a venereal disease, to allege that the treatment was for pay.

8. The superintendent of schools of an independent school district is not such an official as contemplated by section 2076, O.S.1931, 21 Okl.St.Ann. § 1484, which provides every person who commits an extortion under color of official right, etc., is guilty of a misdemeanor.

9. Where petitioner seeks a writ of prohibition against the county court to stay further proceedings in connection with the prosecution of two misdemeanor cases, and the record discloses that the indictment in each case is defective, but that the defect in one of the indictments may be cured by the filing of a new information, but the other indictment is fundamentally defective, the writ of prohibition will be issued as to the case where the indictment is fundamentally defective and denied as to the proceeding under the other indictment.

Original proceeding by W. S. Ray, petitioner, against John C. Stevenson, as County Judge of Grant County, for a writ of prohibition directed to the respondent, to prohibit him from proceeding further in two criminal cases pending in the county court.

Writ of prohibition granted as to one case, but denied as to the other.

O. B. Martin, of Blackwell, for petitioner.

Mac Q. Williamson, Atty. Gen., for respondent.

JONES Judge.

This is an original proceeding filed in this court, in which the petitioner, W. S. Ray, seeks a writ of prohibition directed to the respondent, John C. Stevenson, as County Judge of said county, to prohibit respondent from proceeding further in two criminal cases now pending in said county court, in which the petitioner is the defendant.

The verified petition alleges that the petitioner is now an instructor in the Yale High School, but that he formerly was the Superintendent of Schools at Pond Creek, in Grant County.

That he was charged by indictment in the District Court of Grant County with the crime of practicing medicine without a license in case No. 990. On October 3, 1939, said case came on for arraignment of the defendant, at which time, upon motion of the state in open court, the district court dismissed said indictment and did not order that the same be re-submitted to the grand jury then in session in Grant County.

That thereafter, and on the same day, there was presented and filed in the District Court of Grant County another indictment in case No. 999 against the petitioner, charging him with the same crime as the previous indictment and involving the same acts and circumstances and the same evidence; and the petitioner was again taken into custody and posted a bond for his further appearance in the same case. Thereafter, by order of the district court, said cause was transferred to the County Court of Grant County for further proceedings and docketed as case No. 2449.

That the petitioner was also charged by an indictment in case No. 994 with the crime of extorting by color of office the sum of $6 from one Robert Hamman; that on October 3, 1939, upon his arraignment, the district court dismissed the indictment upon motion of the state and did not order the same to be re-submitted to the grand jury.

That thereafter, and on the same day, the grand jury presented another indictment against the petitioner, charging him with the same crime as in the previous indictment and involving the same acts, circumstances, and evidence. That petitioner posted bond for his further appearance in said cause; and thereafter the district court made an order transferring said cause to the County Court of Grant County for further proceedings, and said case is now docketed as case No. 2452 in the County Court of Grant County.

That thereafter, the petitioner presented and filed his motion to quash and set aside the indictment in both said cases, which motion was overruled by the respondent, as county judge. Thereupon the petitioner filed his demurrer to said indictments, which the court took under advisement until January 24, 1941, on which said date the respondent overruled the demurrer of the petitioner to each of said indictments and announced that the trial of said causes would be had on January 27, 1941.

That said indictments were not presented and filed as prescribed by the statutes of the State of Oklahoma, as the grand jury returned the same after the district court had dismissed the first indictments against the defendant and did not order a re-submission of the same to the grand jury. That the indictments show on their face that they do not state a public offense under the laws of the State of Oklahoma, and the County Court of Grant County is without authority to proceed further with the trial of said defendant upon said void and defective indictments.

A transcript of the proceedings, duly certified to by the Court Clerk of Grant County, pertaining to the charges hereinabove set forth are attached to the petition and made a part thereof.

In conclusion the petitioner prays this court issue its writ of prohibition directed to the respondent, John C. Stevenson, County Judge of Grant County, commanding him to refrain from further proceedings in said cases Nos. 2449 and 2452.

In support of his petition there has been filed an elaborate brief by the attorney for the petitioner.

There has been no response nor brief filed on behalf of the respondent; however, when this matter was presented to the court herein, the Attorney General appeared on behalf of the respondent. Upon the presentation of the petition, the Criminal Court of Appeals issued an order directed to the respondent, commanding him to refrain from further proceedings in said cases until the further order of this court, and granting him an additional five days in which to file his response and brief to the petition filed herein.

Subsequent to this temporary order, issued the 27th day of January, 1941, there has still been no response and no brief filed on behalf of the respondent.

If the Criminal Court of Appeals followed the rule universally adopted for civil law suits, we would issue the writ of prohibition when no response nor brief is filed, and the brief submitted by the petitioner reasonably sustains the allegations of his petition. However, in criminal cases the interests of the state are involved in every proceeding, and the orderly and correct administration of our criminal laws requires us to make an investigation of the record and the law in every case so that the interests of society as well as that of the individual will be protected. We, therefore, assume the duty of examining the record and laying down a rule of law for the future guidance of the courts of this state in similar actions. For this purpose, however, we assume the correctness of all allegations of fact contained in the petition filed herein.

At the outset, we are confronted with the proposition as to whether prohibition is the proper remedy for relief in this class of cases.

In Warner v. Mathews, 11 Okl.Cr. 122, 143 P. 516, 518, it is stated: "We deem it sufficient to say that the legitimate scope and purpose of the writ is to prevent an inferior court from proceeding in an action over the subject-matter of which it has no jurisdiction."

In the case of Evans v. Willis, 22 Okl. 310, 97 P. 1047 1051, 19 L.R.A, N.S., 1050, 18 Ann.Cas. 258, the Supreme...