State v. Barnett

• Decision Date: 12 November 1936
• Docket Number: A-8949,A-8950.
• Parties: STATE v. BARNETT [*]
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

69 P.2d 77

60 Okla.Crim. 355

STATE v. BARNETT ^[*]

Nos. A-8949, A-8950.

Court of Criminal Appeals of Oklahoma

November 12, 1936

"Corruption" is something against or forbidden by law; moral turpitude or exactly opposite of honesty involving intentional disregard of law from improper motives. It covers the act of an officer in accepting a bribe in phrase "corruption in office," which means an act of official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person contrary to duty and rights of others. It covers every class of crime amounting to felony when intentionally committed by ministerial or judicial officer. The phrase "misconduct in office" includes any willful malfeasance, misfeasance, or nonfeasance in office, and means any act or omission in breach of duty of public concern by person who has accepted public office provided his act is willful and corrupt and is not judicial. "Malfeasance" is the performance of that which an officer has no authority to do and is positively wrong or unlawful. "Misfeasance" by an officer is the performance in a wrongful manner of that which the law authorizes or requires him to do and "nonfeasance" by an officer is the substantial failure to perform duty.

Syllabus by the Court.

1. Nothing but a clear violation of the Constitution, Federal or State, will justify the judicial department in pronouncing an act of the legislative department unconstitutional and void.

2. The courts cannot annul or pronounce void any act of the Legislature upon any other ground than that of repugnancy to the Constitution of the United States or of the state.

3. Every legislative act is presumed to be constitutional, and the courts should not declare an act to be unconstitutional unless it is clearly so. If there is doubt, the express will of the Legislature should be sustained.

4. The definition of an act made an offense by statute, but not defined by it, may be ascertained by reference to common law.

5. Where a statute uses words which have a definite and well-known meaning at common law, it will be presumed that they are used in the sense in which they were understood at common law, and the statute will be construed accordingly unless a contrary intention clearly appears.

6. Where the language of a statute is unambiguous and its meaning is evident, it must be held to mean what it plainly expresses, and no room is left for the application of rules of construction and interpretation.

7. A court in determining what acts may be punished under a statute must apply the rule that the terms of a penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.

8. A penal statute is sufficiently certain, although it may use general terms, if the offense is so defined as to convey to a person of ordinary intelligence what acts are prohibited.

9. Where statutes not a part of the Penal Code make any specific act criminal, and statutes in the Penal Code make the same act a criminal offense, the offense and punishment therefor shall be governed by the special provisions relating thereto. Section 1773, St.1931 (21 Okl.St.Ann. § 11).

10. Where a statute defines an offense, and enumerates disjunctively, the different acts or things which constitute the offense, all of such acts may be charged in a single count conjunctively, since, though each by itself may constitute the offense, all together do no more, and constitute but one and the same offense.

11. A law that is unconstitutional is so because it is either an assumption of power not legislative in its nature; or because it is inconsistent with some provision of the Federal or State Constitution.

12. The statutory provision that "Any Commissioner, assistant commissioner, secretary, examiner, or employee of the Banking Department, who shall be guilty of any corruption or misconduct in office, or who shall accept any gratuity reward or present from any bank or bank officer, or shall take or accept any fee or compensation from any bank or banker during his term of office, shall be deemed guilty of corruption in office," does not violate the "due process of law" clause of the Fifth Amendment and of section 1 of the Fourteenth Amendment, or the requirement of the Sixth Amendment of the Federal Constitution that "The accused shall enjoy the right-to be informed of the nature and the cause of the accusation," as failing to define the offense with sufficient certainty. Held further, that said section does not deprive any person of liberty or property without due process of law within the meaning of section 7, article 2, of the State Constitution and does not violate that clause of section 20, article 2, declaring that the accused "shall be informed of the nature and cause of the accusation."

13. The provisions of chapter 40, arts. 3 and 4, §§ 9146 and 9163 (6 Okl.St.Ann. §§ 18, 22) are not void for uncertainty in respect to the duties therein imposed upon the state bank commissioner, and the terms of the statute are sufficiently definite and certain to inform those who are subject to it what acts or conduct on their part will render them liable to its penalties. Held further, that a violation of said sections constitute misconduct and corruption in office.

Appeals from District Court, Oklahoma County; Lucius Babcock and Sam Hooker, Judges.

W. J. Barnett was indicted for corruption in office under two indictments, and from judgment sustaining the defendant's motion to quash the indictments, the State appeals.

Reversed and remanded with directions.

'The State of Oklahoma is an inseparable part of the Federal Union, and the Constitution of the United States is the supreme law of the land.'

That the Constitution of the United States is the Supreme law of the land to be read, considered and respected as such by every Court. That tested and measured by said Constitutional provisions as read and construed by the Courts of the land said section 9163, O.S.1931 [6 Okl.St.Ann. § 22] wholly fails to create the offense of 'Corruption in Office.'

That no Statute of the State of Oklahoma makes unlawful or criminal any act in this indictment alleged against or charged to this defendant.

That, therefore, said indictment charges this defendant with no crime or public offense known to the laws of the State of Oklahoma.

That therefore, said indictment should be quashed and set aside, and the defendant's bail exonerated.

It is therefore, by the court considered, ordered and adjudged:

1. That the indictment returned and filed herein be and the same is hereby quashed and set aside for the reasons set forth in the findings of the Court herein, to which action and ruling of the Court the State of Oklahoma, by the County Attorney excepts, and exception is allowed, thereupon the County Attorney gives notice in open court of his intention to appeal to the Criminal Court of Appeals of the State of Oklahoma, and requests that the Clerk be directed to note on the minutes said notice of appeal, which was accordingly done.

2. It is further ordered and adjudged by the Court that the sureties on the bail bond of the defendant, W. J. Barnett, be, and they are hereby exonerated and discharged from further liability by reason of their undertaking herein, but that the said defendant, W. J. Barnett, be not discharged pending the appeal and determination of this cause by the Criminal Court of Appeals of the State of Oklahoma, but that he be enlarged and placed at liberty upon his own recognizance during the pendency of said appeal.

It is the further order and judgment of the Court that in the event the appeal herein allowed is not perfected within the time fixed by law, and the order of this Court, or if this order shall be affirmed, that then and in that event, the defendant, W. J. Barnett shall stand discharged under the indictment herein.

Witness the undersigned Judge of the District Court within and for Oklahoma County, Oklahoma.

Lucius Babcock, Judge.

Witness the undersigned, one of the Judges of the District Court of Oklahoma County, who fully concurs in the foregoing decision and judgment.

Sam Hooker, Judge."

Mac Q Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., and Walter Marlin, Asst. Co. Atty., both of Oklahoma City, for the State.

J. D. Lydick, Sid White, and A. L. Beckett, all of Oklahoma City, and Curtis P. Harris, of Stillwater, for defendant in error.

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

In these cases the State appeals from judgments in favor of the defendant entered upon orders sustaining motions identical in each case, to quash and set aside the indictments. The court rendering judgment in each case sustaining the motions ordered that the defendant, W. J. Barnett, be not discharged pending the appeals and the determination of the same by this court.

Procedure criminal section 3191 (22 Okl.St.Ann. § 1053), provides:

"Appeals to the criminal court of appeals may be taken by the State in the following cases and no other:

First. Upon judgment for the defendant on quashing or setting aside an indictment or information.

Second. Upon an order of the court arresting the judgment.

Third. Upon a question reserved by the State."

The grounds upon which an indictment may be set aside upon the motion of a defendant are clearly defined in procedure criminal. Section 2937 (22 Okl.St.Ann. § 493).

They are as follows:

"The indictment or information must be set aside by the court in which the defendant is arraigned, and upon his motion in any of the following cases:

First. When it is not found, indorsed, presented or filed, as prescribed by the statutes or...