Salter v. State

• Decision Date: 26 June 1909
• Citation: 102 P. 719,2 Okla.Crim. 464
• Parties: SALTER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

102 P. 719

2 Okla.Crim. 464

SALTER v. STATE.

Court of Criminal Appeals of Oklahoma

June 26 1909

Syllabus by the Court.

In the Constitution of Oklahoma, the utmost pains have been taken to preserve all the securities of individual liberty, and all provisions of the Constitution designed to safeguard the liberty and security of the citizen should be liberally construed by the courts.

While it is the duty of the courts to uphold any statute enacted in the ordinary exercise of the legislative power, unless the constitutional objections to it are clear and indisputable yet when it is proposed by a statute to deny, modify, or diminish a right or immunity secured to the people by a clear and explicit constitutional provision, then the presumption is against the validity of the statute, and the courts should enforce the constitutional provision.

The Constitution of the state of Oklahoma, being section 30 (Bunn's Ed. § 39) of the Bill of Rights, provides that "The right of the people to be secure in their persons houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation describing as particularly as may be the place to be searched and the person or thing to be seized." Therefore a statute of Oklahoma Territory, which provides that in misdemeanor cases a warrant may issue upon information, which has been verified only on information and belief, and without any other evidence, is repugnant to the foregoing provision of the Constitution, and is null and void.

A verification to an information, charging a misdemeanor and stating that affiant "declares that the statements set forth in the above information are true, as he is informed and verily believes," is nothing more than the expression of an opinion, and is not sufficient to justify the issuance of a warrant of arrest; and an information so verified is insufficient to support a judgment of conviction.

In Oklahoma an information charging a misdemeanor must be verified by oath of the prosecuting attorney, or by the oath or affirmation of some person competent to testify, presenting the facts to the magistrate, before a warrant for the party charged may issue.

Error from Carter County Court; I. R. Mason, Judge.

N. J. (Doc.) Salter was convicted of a violation of the prohibition law, and he brings error. Reversed and remanded, with directions.

Wilson's Rev. & Ann.St.1903, § 5306, 22 Okl.St.Ann. § 303, declaring that an information verified by the county attorney upon information and belief is sufficient, is repugnant to Okl.St.Ann.Const. Bill of Rights, § 30, Bunn's Ed.§ 39, providing that no warrant shall issue but upon probable cause, supported by oath or affirmation, describing as particularly as may be the person or thing to be seized.

The plaintiff in error, N. J. (Doc.) Salter (hereinafter designated defendant) was, at the January, 1908, term of the county court of Carter county, tried and convicted of violating a provision of the prohibition ordinance, and sentenced to pay a fine of $100, and that he be imprisoned in the county jail of Carter county for a period of 60 days. This conviction was had on an information filed in the county court of Carter county by the county attorney of said county, on the 26th day of December, 1907, wherein defendant was charged with "unlawfully selling to one C. S. Holt certain intoxicating liquor, to wit, one pint of whisky for the price and sum of $1." The information was verified as follows, on information and belief, and the county attorney did not verify the same by his own oath:

"State of Oklahoma, Carter County--ss.: J. H. Akers being duly sworn on oath declares that the statements set forth in the above information are true as he is informed and verily believes. [Signed.] J. H. Akers.

"Subscribed and sworn to before me this 26th day of December, 1907. I. R. Mason, County Judge." On January 24, 1908, defendant waived arraignment, and entered a plea of not guilty; the case was called for trial; defendant demanded a jury. C. S. Holt, being sworn, was called as the first witness for the state, whereupon defendant by his counsel interposed the following objection: "Now comes the defendant, and objects to the introduction of testimony in this case, for the reason that this complaint is not sufficiently verified to put defendant upon trial." Which motion was overruled by the court, to which ruling defendant excepted. After hearing the evidence and receiving the instructions of the court, the jury retired, and returned their verdict, finding defendant guilty as charged. On January 25, 1908, defendant filed his motion for a new trial which motion, omitting the formal parts, reads as follows: "Motion for New Trial. Now comes the defendant, Doc. Salter, and moves the court to grant him a new trial, for the reason that the information on which he was tried was not sufficiently verified in this: That it was not positively sworn to, same being sworn to on information and belief, contrary to article 4 of the amendments of the Constitution of the United States, which reads as follows: '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.' Also section 30 (Bunn's Ed. § 39) of the Constitution of the state of Oklahoma, which reads as follows: 'The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.' [Signed.] Brown & Turner, Attorneys for Defendant." On January 27, 1908, before judgment, defendant filed his motion in arrest of judgment, which motion set forth the same grounds that are set forth in defendant's motion for a new trial. The court overruled the motion for new trial; also the motion in arrest of judgment. Exceptions were taken to each ruling, and the court pronounced judgment. On March 6, 1908, defendant's petition in error and casemade were filed in the Supreme Court. Upon the organization of the Criminal Court of Appeals said cause was duly transferred, as by law provided, to this court. At the March term, said cause was submitted, and is now before this court for review.

R. F. Turner and H. H. Brown, for plaintiff in error.

Fred S. Caldwell, for the State.

DOYLE, J. (after stating the facts as above).

This case involves an apparent incompatibility between that clause of the Constitution contained in Bill of Rights, § 30 (Bunn's Ed. § 39): "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized." And the proviso in that provision of Procedure, Criminal, § 5306 (Wilson's Rev. & Ann. St.), which provides, in part, that: "All informations shall be verified by the oath of the prosecuting attorney, complainant or some other person: Provided, that when an information in any case is verified by the county attorney, it shall be sufficient if the verification be upon information and belief." The record shows that upon the information, verified only on information and belief, and without any further or other evidence that an offense had been committed, or that the defendant was probably guilty of any violation of law, a warrant was issued out of the county court of Carter county, commanding the arrest of defendant, and that he be brought before the court to answer this information. When the state offered its proof, at the outset an objection was interposed, and after the verdict, and before judgment, the motions for a new trial and in arrest of judgment were made. The assignments of error are predicated upon the rulings of the court on the objection interposed and the two motions, and present but one proposition to be considered by the court.

The Constitution of this state authorizes the prosecution of crimes by information, but with the following restrictions as to felonies: Section 17, Bill of Rights, declares: "No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. Prosecutions may be instituted in courts not of record upon a duly verified complaint." Our statutes provide (section 5239, Wilson's Rev. & Ann. St.) "When an information, verified by oath or affirmation, is laid before a magistrate, of the commission of a public offense, he must, if satisfied therefrom that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, issue a warrant of arrest." And section 5305, Wilson's Rev. & Ann. St.: "If the offense be a misdemeanor punishable by a fine of more than one hundred dollars, or by imprisonment for more than thirty days, or by both fine and imprisonment, it shall be prosecuted by information." The office of an information charging a misdemeanor under the criminal procedure of Oklahoma is not only to give the county court jurisdiction to issue the warrant of arrest, but it is also the pleading, on the part of the state, informing the defendant of what offense he is charged with, for the...