State ex rel. Cobb v. Mills

• Decision Date: 14 November 1945
• Docket Number: A-10678.
• Citation: 163 P.2d 558,82 Okla.Crim. 155
• Parties: STATE ex rel. COBB, Atty. Gen., et al. v. MILLS, Judge.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

163 P.2d 558

82 Okla.Crim. 155

STATE ex rel. COBB, Atty. Gen., et al. v. MILLS, Judge.

No. A-10678.

Court of Criminal Appeals of Oklahoma

November 14, 1945

Original proceeding by the State, on the relation of Randell S. Cobb Attorney General, and Warren H. Edwards, County Attorney of Oklahoma County, against Clarence M. Mills, Judge of the District Court of Oklahoma County, for a writ of prohibition directed to respondent to prohibit respondent from entering an order of dismissal in two cases pending in district court wherein Edward H. Davis was charged in each case with the crime of manslaughter.

Writ denied.

Where army officer, whose automobile struck and killed two workmen was released by civil authorities to military police before any charges were filed, and was thereafter prosecuted for manslaughter before a general court-martial and acquitted and state did not demand his custody until after such acquittal, officer, in subsequent prosecution for manslaughter in state court arising out of same occurrence was entitled to plead such acquittal in bar of prosecution. 21 Okl.St.Ann. § 25; 22 Okl.St.Ann. §§ 14, 130, 522; Okl.St.Ann. Const. art. 2, §§ 17, 20, 21; Articles of War, arts. 14, 119, 134, 50 U.S.C.A. §§ 568, 713, 728.

Syllabus by the Court.

1. The writ of prohibition is a highly remedial writ and as a general rule will not be granted unless absolutely necessary, or the public good demands. But where this necessity and demand appear, the Criminal Court of Appeals has the undisputed right to grant relief. Bennett v. District Court of Tulsa County et al., Okl.Cr., 162 P.2d 561.

2. Tit. 21 O.S.1941 § 25 provides:

'Whenever it appears upon the trial that the accused has already been acquitted or convicted upon any criminal prosecution under the laws of another state, government or country, founded upon the act or omission in respect to which he is upon trial, this is a sufficient defense.'

3. Where a member of the armed forces of the United States was arrested by the civil authorities but custody was turned to the military prior to the filing of charges of manslaughter against him by the civil authorities, the military authorities had jurisdiction to file charges against him, and try him by a general court-martial.

4. Courts-martial are lawful tribunals, with authority to finally determine any case over which they have jurisdiction, and their proceedings, when confirmed as provided, are not open to review by the civil tribunals, except for the purpose of ascertaining whether the military court had jurisdiction of the person and subject matter, and whether, though having such jurisdiction, it had exceeded its powers in the sentence pronounced.

5. Civil tribunals cannot disregard the judgments of a general court-martial against an accused officer or soldier, if such court had jurisdiction to try the offense set forth in the charge and specifications; this, notwithstanding the civil court if it had first taken hold of the case might have tried the accused for the same offense or even one of a higher grade arising out of the same facts.

6. The jurisdiction of general courts-martial extends to all crimes, not capital, committed against public law by an officer or soldier of the army within the limits of the territory in which he is serving, this jurisdiction is not exclusive, but only concurrent with that of the civil courts. Of such offenses courts-martial may take cognizance under the 62d Article of War (1 Fed.Stat.Ann.495), and, if they first acquire jurisdiction, their judgments cannot be disregarded by the civil courts for mere error or for any reason not affecting the jurisdiction of the military court.

7. The authorities holding that a member of the armed forces of the United States may be prosecuted by both the civil and military authorities and that the one is not a bar to the other for the reason that two different crimes were committed, has no application to the facts here presented, in view of Tit. 21 O.S.1941 § 25.

8. Tit. 21 O.S.1941 § 25, is independent of Oklahoma statutes which require a prosecution in this State to be by indictment or information; that a prelininary examination must be had upon a duly verified complaint; that a defendant shall have a trial by jury, and a list of witnesses served upon him before trial in a capital case. This statute only has reference to when one may plead former jeopardy when placed upon trial for the same offence for which he has been previously acquitted or convicted.

9. Many decisions have distinguished identical acts as involving a violation of both the state law and the Articles of War, and hold that there may be a violation of both. Other cases hold that there is a concurrent jurisdiction by the State and military authorities, and that the one first acquiring jurisdiction and taking action thereon may continue with its proceedings and the judgment of such tribunal is a bar to an action by the other. The facts presented in the instant case reveal that the military authorities were first given custody of the defendant; that he was tried by a general court-martial having jurisdiction and found not guilty of the identical offense with which he was charged in the State court. At no time did the State demand his custody and his arraignment in the District Court of Oklahoma County was after he had been tried and acquitted by a general court-martial. Held: Under this state of facts, defendant was entitled, under Tit. 21 O.S.1941 § 25 to plead this acquittal in bar of a prosecution for the same offense in the State court.

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

George Miskovsky, of Oklahoma City, for respondent.

BAREFOOT Presiding Judge.

This is an original proceeding in which the State of Oklahoma seeks a writ of prohibition directed to the respondent, Clarence M. Mills, Judge of the District Court of Oklahoma County, to prohibit said Judge from entering an order of dismissal in two cases pending in such district court, wherein one Davis was charged in each of said cases with the crime of manslaughter.

Attached to the petition is a statement of facts and bill of exceptions, prepared and signed by the trial judge at the suggestion of the petitioner, and which simplifies the record. There is no dispute as to the facts in this case, and it is to be decided solely upon a question of law.

The only question presented by this proceeding is the correct construction and interpretation to be placed upon the so-called 'double jeopardy' statute, 21 O.S.1941 § 25 which provides: 'Whenever it appears upon the trial that the accused has already been acquitted or convicted upon any criminal prosecution under the laws of another State, government or country, founded upon the act or omission in respect to which he is upon trial, this is a sufficient defense.'

Respondent contends that by the special wording of the above statute, it is his imperative duty to sustain the motion filed by the defendant Davis to dismiss the manslaughter charges pending in the district court of Oklahoma County, for the reason that the said Davis had, prior thereto, been tried and acquitted by a general army court-martial, sitting at Will Rogers Army Air Field, in Oklahoma County, which involved charges growing out of the same facts which were the basis of the charges filed in the State court.

Counsel for respondent raises the question of the right of the court to issue a writ of prohibition under the facts in this case.

This question has been before this Court in two very late cases, and has also been passed upon recently by the Supreme Court of this state. We refer to the cases of In re Strauch, Okl.Cr., 157 P.2d 201, and Bennett v. District Court of Tulsa County, Okl.Cr., 162 P.2d 561; and Oklahoma Tax Commission v. Clendinning, 193 Okl. 271, 143 P.2d 143, 151 A.L.R. 1035.

In the Bennett case we discussed very fully the right of this Court to grant the writ of prohibition, and when it will do so. It is unnecessary to again review the authorities and quote from those decisions. We are of the opinion that the facts in the instant case are such that justify us in assuming jurisdiction to decide the question here presented, upon its merits.

The stipulated facts are that on June 22, 1945, at about 3:34 in the morning, Edward H. Davis, a lieutenant in the United States Army and stationed at Will Rogers Army Air Field, was operating an automobile within the corporate limits of Oklahoma City, Okl. He was not engaged in any military mission, and was not within any military area. While so driving said car, he drove into a section of a street which was 'guarded by warning lights and flags, and in which two civilian employees of the Oklahoma Street Railway Company were at work.' The automobile struck and killed both of said employees.

The Lieutenant was taken into custody by Oklahoma City policemen, but was, on the following afternoon, turned over by them to the Military Police. He was taken to Will Rogers Army Air Field, where he was stationed as a member of the United States Army.

On June 23, 1945, complaints were duly filed before a justice of the peace in Oklahoma County, charging the Lieutenant with manslaughter in the killing of said persons.

On July 17, 1945, the said Edward H. Davis was tried before a general court-martial at Will Rogers Army Air Field, pursuant to an accusation charging him with 'violation of the 93rd Article of War,' 10 U.S.C.A. § 1565, and containing two specifications accusing the defendant of negligently and unlawfully killing the aforesaid two persons while driving in a grossly negligent manner. The court-martial proceedings resulted in the entry of...