State ex rel. Cobb v. Mills

• Decision Date: 27 March 1946
• Docket Number: A-10678.
• Citation: 167 P.2d 669,82 Okla.Crim. 155
• Parties: STATE of Oklahoma ex rel. Randell S. COBB, Attorney General, and Warren H. Edwards, County Attorney of Oklahoma County, State of Oklahoma, Petitioner, v. Clarence M. MILLS, Judge of the District Court of Oklahoma County, State of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

167 P.2d 669

82 Okla.Crim. 155

STATE of Oklahoma ex rel. Randell S. COBB, Attorney General, and Warren H. Edwards, County Attorney of Oklahoma County, State of Oklahoma, Petitioner, v. Clarence M. MILLS, Judge of the District Court of Oklahoma County, State of Oklahoma, Respondent.

No. A-10678.

Court of Criminal Appeals of Oklahoma

March 27, 1946

On rehearing.

Rehearing denied.

For former opinion, see 163 P.2d 558.

Randell S. Cobb, Atty. Gen., Sam H Lattimore, Asst. Atty. Gen., and Warren H. Edwards, Co. Atty., Oklahoma County, of Oklahoma City, for petitioner.

George Miskovsky, of Oklahoma City, for respondent.

BAREFOOT, Judge.

The petition for writ of prohibition filed by the State in this case was denied by this Court in an opinion rendered November 14, 1945, 163 P.2d 558, not yet reported in the State reports.

A motion for rehearing has been filed by the Attorney General and our attention called to the fact that while the petition was under consideration, and on October 30, 1945, the Attorney General filed a reply brief with the clerk of the Criminal Court of Appeals. This brief was not delivered to the Court prior to the consideration of the case. We have now examined that brief, and the petition for rehearing with brief attached, and the reply brief filed by the respondent.

It is strongly contended that the Court erred in the opinion heretofore rendered. We have again carefully considered the facts in this case.

The cases cited by the State which it is claimed sustain its contention are: Moore v. People of Illinois, 14 How 13, 55 U.S. 13, 14 L.Ed. 306; Fox v. State, 5 How, 410, 432, 12 L.Ed. 213; United States v. Marigold, 9 How. 560, 13 L.Ed. 257; People v Eklof, 179 Misc. 536, 41 N.Y.S.2d 557; Hebert v State of Louisiana, 272 U.S. 312, 47 S.Ct. 103, 71 L.Ed. 270, 48 A.L.R. 1102; Jerome v. United States, 318 U.S. 101, 63 S.Ct. 483, 87 L.Ed. 640; State v. Rankin, 44 Tenn. 145, 146; Ex parte Tobias Watkins, 3 Pet. 193, 28 U.S. 193, 7 L.Ed. 650; Wise v. Withers, 3 Cranch 331, 2 L.Ed. 457; Ver Mehren v. Sirmyer, Commandant, etc., 8 Cir., 36 F.2d 876; McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049; and In re Bogart, U.S., 3 Fed.Cas. page 796, No. 1,596.

We have carefully read each of these cases. It would unduly lengthen this opinion on rehearing to refer to each of them. In many of the cases the question of trial by court-martial was not involved, and only slight reference is made to the question here under consideration. Many of the cases cited arose during the time of the Civil War. The statutes and the Articles of War have been amended and changed since they were first written, and the facts involved in a majority of the cases are different from the facts in the case at bar. Many of the cases are based upon the fact that two crimes were committed by the same act, one against the United States, and one against the state, as stated in the original opinion in this case, and for this reason a prosecution by both the civil and military authorities was permissible. In a number of the cases cited, it was held that a concurrent jurisdiction existed between the civil and military authorities, and that the one first assuming jurisdiction would be respected by the other.

Many of the cases are based upon the decision of the case of United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314, to which reference is made in the case of LaForge v. State, 28 Okl.Cr. 37, 228 P. 1111, decided by this Court, and in which it is held that by reason of 21 O.S.1941 § 25 the rule announced in the Lanza case does not apply in this State. This distinction is recognized in the note to 48 A.L.R. page 1108, where the LaForge case is cited and quoted.

In the case of Griffin v. State, 57 Okl.Cr. 176, 46 P.2d 382, 386, this court, after quoting the above statute, says: 'Our statute above quoted (21 O.S.1941 § 25) is susceptible of but one construction. And a conviction in a federal court for the same act as charged in a prosecution in a state court is a conviction under the laws of another 'government' within the meaning of the statute; and by virtue of the statute alone such conviction is a complete defense to a prosecution for the same act or omission in the courts of this state.'

It will also be noted that none of the states from which the cases cited by the State are taken have a statute like that in force in Oklahoma.

Counsel for the State has referred in his brief to the case of People v. Spitzer, 148 Misc. 97, 98, 266 N.Y.S. 522, 528, to which reference is made in the original opinion. Attention is called to the terms of the New York statute, and the statute is set out in the State's brief. We have examined the same, and under its terms the decision in that case is squarely against the contention made by the State in the instant case. It is in harmony with the ruling in the Oklahoma case of LaForge v. State, supra, cited in the original opinion. The court, in that opinion, says: 'The right of a defendant to be tried only once for the same offense has long been recognized and cautiously guarded by the common law among all English-speaking nations, and has been restated and preserved to us by our Constitution, as well as by various statutes; and the rule that safeguards this ancient and important right should not be so attenuated and hedged about by technicality and refinement as to render its application difficult, or its security uncertain. The defendants participated in but a single transaction, and the acts for which they are indicted here are precisely and exclusively the facts upon which they were convicted and sentenced in the federal court. It is the spirit and purpose of the laws of New York that for the same acts and upon the same evidence a defendant shall not be twice put in jeopardy. The former conviction in the federal court is a bar to a further prosecution of the indictment here.'

The State also cites the case of People v. Eklof, 179 Misc. 536, 41 N.Y.S.2d 557, 558, and quotes the first, second and third paragraphs of the syllabus. The reading of the case reveals that it is squarely against the contention of the State. It is in harmony with the decision of the New York Courts in holding that where the offenses are 'identical in law and in fact,' a conviction in the federal court is a bar to a prosecution in the state court. A distinction is made between the decisions in the state and federal courts. In the body of the opinion it is said:

'It is also provided in section 139 of the Code of Criminal Procedure: 'When an act charged as a crime is within the jurisdiction of another state, territory or country, as well as within the jurisdiction of this state, a conviction or acquittal thereof in the former, is a bar to a prosecution or indictment therefor in this state.'

'Section 33 of the Penal Law provides that when an offense is committed in a foreign jurisdiction under circumstances under which the courts of this State have jurisdiction, and the defendant has already been acquitted or convicted on the merits upon a criminal prosecution under the laws of such State or country, such former acquittal or conviction is a sufficient defense.

'The motion to dismiss the indictment on the ground of double jeopardy is therefore granted.'

An examination of section 33 of the Penal Laws reveals that the word 'government' appears therein, but it does not in any way change the meaning of the statute, as above stated.

The strongest case presented by the State in its brief on motion for rehearing in support of its contention, is that of State v. Rankin, 44 Tenn. 145, 146. We had read and considered this case prior to writing the original opinion. In that case the defendant stood charged in the Circuit Court of Jefferson County, Tennessee, with murder, committed on June 1, 1865. He was a lieutenant in Company B, Ninth Tennessee Cavalry, and as such in the military service of the United States, and subject to the jurisdiction of the military courts and general courts-martial established by the laws of the United States. He was charged in the military court with the crime of murder, being the same charge filed against him in the Circuit Court of Tennessee, and tried by a general court-martial, and found 'not guilty.' He plead this action as a bar to his prosecution in the Circuit Court of Jefferson County. The Circuit Court sustained his plea of former jeopardy, and the State appealed to the Supreme Court of Tennessee. The Supreme Court reversed the judgment of the Circuit Court, holding that the defendant could be tried under the laws of the State, notwithstanding the trial and acquittal by the general court-martial.

Granting that this decision is in accord with the contention of the State here, we call attention to the fact that Tennessee had no such statute as Oklahoma, 21 O.S.1941 § 25, upon which the decision in this case was based.

The Tennessee case is predicated upon the early decisions of the United States Supreme Court heretofore cited. As pointed out, these cases were not court-martial cases, and in most instances were based upon the distinction that the defendant was charged with two distinct crimes, one against the state or civil authorities, and one against the military authorities.

The court cites and discusses the case of Capt. Howe ('Military Law & Courts-Martial,' by Bennett, pp 100-102). In that case Capt. Howe was charged in the court-martial proceedings with 'conduct prejudicial to good order and military discipline' in committing certain acts, which caused the death of another. An attempt was made to prosecute him in the civil courts of Florida upon the charge of murder, and the military court sustained the plea that the defendant could not be prosecuted in the...