S. Sur. Co. v. State

• Decision Date: 15 October 1912
• Docket Number: Case Number: 2162
• Citation: 127 P. 409,1912 OK 652,34 Okla. 781
• Parties: SOUTHERN SURETY CO. v. STATE.
• Court: Oklahoma Supreme Court

1912 OK 652

127 P. 409

34 Okla. 781

SOUTHERN SURETY CO. v. STATE.

Case Number: 2162

Supreme Court of Oklahoma

Decided: October 15, 1912

Syllabus

¶0 1. APPEAL AND ERROR--Assignments of Error--Necessity. The Supreme Court will not review alleged errors of the trial court, unless the errors complained of are in some manner assigned for review by the petition in error.

2. CRIMINAL LAW -- Conflicting Jurisdiction--State and Federal Courts. Adultery, being an offense arising out of the marriage relation, is cognizable only in the state courts, the power to legislate on that subject not being one delegated by the states to Congress or reserved by the Constitution to the federal government, except in the territories, forts, arsenals, custom houses, or other places where the United States has exclusive jurisdiction, in which places Congress may pass laws defining the offense and prescribing the punishment.

3. SAME -- Territorial Courts -- Transfer of Causes. Prior to the admission of Oklahoma into the Union as a state, the crime of adultery in the Indian Territory was an offense against the federal statute, for that all of Indian Territory was under the immediate and exclusive jurisdiction of the United States, but by virtue of the provision of the Enabling Act (Act June 16, 1906, c. 3335, 34 St. at L. 267) as amended by Act March 4, 1907, c. 2911, 34 St. at L. 1286, all persons charged with the crime of adultery at the time of statehood and whose cases were then pending in the United States courts of the Indian Territory were thereafter properly prosecuted in the district courts of the state, unless the offense had been committed in some part of the Indian Territory over which the federal government retained exclusive jurisdiction, in which case it would be properly triable in the federal courts.

4. COURTS--Territorial Courts--Admission as State--Right of Action on Forfeited Bond. Under the provisions of the Enabling Act (Act June 16, 1906, c. 3335, 34 St. at L. 267), as amended by Act March 4, 1907, c. 2911, 34 St. at L. 1286, the state of Oklahoma became subrogated to all rights, powers, and privileges, of the United States in all the cases that were properly transferred from the United States courts of the Indian Territory to the courts of the state of Oklahoma, and especially to the rights of the original obligee in criminal appearance bonds.

5. BAIL--Criminal Prosecution--Right of Action on Forfeited Bond--Effect of Statehood. A surety on a forfeited criminal appearance bond given in the Indian Territory prior to statehood will not be heard, in an action to recover on said bond on account of forfeiture taken, to object to the substitution of the state of Oklahoma for the United States, the original obligee named in the said bond; said substitution being authorized by the terms of the Enabling Act (Act June 16, 1906, c. 3335, 34 St. at L. 267) as amended by Act March 4, 1907, c. 2911, 34 St. at L. 1286.

J. E. Whitehead, for plaintiff in error. Chas. West, Atty. Gen., for the State.

ROBERTSON, C.

¶1 In 1907, prior to statehood, J. B. Stout was held by a United States commissioner to await the action of the grand jury at the November, 1907, term of the United States Court for the Central District of the Indian Territory, sitting at McAlester, on two charges--one for introducing whisky into the Indian Territory, and the other for the crime of adultery. His bail was fixed at $ 750, and was furnished by the plaintiff in error. On January 8, 1908, he was indicted by the grand jury of Pittsburg county for the crime of adultery. At the March, 1908, term of the district court of Pittsburg county, he was called for arraignment, and failing to appear, a forfeiture on the bond was taken, and on January 23, 1909, defendant in error brought suit against Stout and the Surety Company to recover on the forfeited bond. No service being had on Stout, the trial proceeded against the Surety Company, and resulted in a judgment in favor of the state for the full amount sued for. The Surety Company appeals. By its petition in error the Surety Company seeks the review of several rulings of the trial court; but inasmuch as the consideration of all but one of the assignments of error requires an examination of the evidence introduced at the trial, and no exception or objection to the overruling of the motion for a new trial is alleged or pleaded, and no error being assigned thereon in the petition in error, it will be unnecessary to give them further attention, as this court cannot review alleged errors, unless the same are presented by the petition in error."The Supreme Court will not review alleged errors in the trial court, unless the error complained of is in some manner assigned for review by the petition in error." (Lokkabaugh v. Epperson, 28 Okla. 472, 114 P. 738.) "Where appellant fails to assign in his petition in error as error the overruling of a motion for a new trial, no question that seeks to have reviewed the errors alleged to have occurred during the progress of the trial in the court below is properly presented to the Supreme Court, and such cannot be reviewed." (Meyer v. James, 29 Okla. 7, 115 P. 1016.) The only error, therefore, arising on the record, which we are warranted in considering, is that one mentioned in the fourth assignment of error, viz.: "That the lower court erred in over, ruling the demurrer filed by the defendant below, to the original petition of plaintiff below." Four separate grounds of de-murrer are urged by plaintiff in error, viz.:

"First. That this court had no jurisdiction to indict the defendant, J. B. Stout, for an offense committed prior to the admission of the state of Oklahoma into the Union. Second. That this court had no jurisdiction to forfeit said bond as alleged in plaintiff's petition. Third. That this court had no jurisdiction of this cause of action against this defendant, or the said J. B. Stout. Fourth. That the petition of the plaintiff does not state facts sufficient to constitute a cause of action against the defendant."

¶2 Plaintiff in error contends that the offense of adultery in the Indian Territory prior to statehood was cognizable only under the federal statutes, and an examination of the laws in force in the Indian Territory prior to the admission of Oklahoma into the Union discloses the fact that the laws of Arkansas which had been put in force in the Indian Territory made no provision for the punishment of the crime of adultery, but that such offense was prosecuted under and by virtue of the so-called "Edmunds-Tuck-er" Act (Act March 3, 1887, c. 397, 24 St. at L. 635 [U.S....