State v. Stout

• Decision Date: 21 September 1949
• Docket Number: A-11020.
• Citation: 210 P.2d 199,90 Okla.Crim. 35
• Parties: STATE v. STOUT et al.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

210 P.2d 199

90 Okla.Crim. 35

STATE v. STOUT et al.

No. A-11020.

Court of Criminal Appeals of Oklahoma

September 21, 1949

Charles Stout and Harry McCarthy were charged with unlawful conspiracy to violate the prohibition laws.

The County Court of Nowata County, Oklahoma, Leslie J. Coffman J., sustained the demurrer of defendants and discharged defendants, and the state appealed on reserved question of law.

The Criminal Court of Appeals, Brett, J., dismissed the appeal and denied the request of the state for reinstatement of the case for prosecution, holding that because conspiracy statute had been declared unconstitutional prior to acts with which the defendants were charged, and because the statute was not thereafter declared constitutional until after the acts were allegedly committed, defendants could not be prosecuted.

Syllabus by the Court.

1. Appeals to the Criminal Court of Appeals may be taken by the State, among other grounds, upon a question reserved by the State.

2. An appeal upon a question reserved by the State does not bring up any part of the trial or proceedings of the case, except the question reserved and the judgment of acquittal, and if such question reserved is decided in favor of the State, it simply settles that question of law and does not affect the verdict of acquittal.

3. The crime of conspiracy does not merge in the unlawful acts described as overt acts in the information, where the conspiracy is a definite crime and not an essential part of the crime to accomplish that for which the conspiracy was formed.

4. Sections 499, 500, 501, 508, Title 22 O.S.1941, outline the procedure to be followed by the trial court in connection with the sustaining of a motion to quash or demurrer to an indictment by a defendant upon his arraignment in the district court on a felony charge, but do not apply in the case of misdemeanors for the reason that the county court is without authority to direct a case to be resubmitted to a grand jury.

5. Where a criminal statute is first declared unconstitutional and later held constitutional, one committing the prohibited act during the time between the two decisions is not liable to prosecution for such act.

Mac Q Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., J. M. Springer, Co. Atty., Nowata, for plaintiff in error.

Irvine E. Ungerman, Tulsa, and Charles A. Whitebook, Tulsa, of counsel, for defendants in error.

BRETT Justice.

This is an appeal from the county court of Nowata County, Oklahoma, by the state, on a reserved question of law. On January 2nd, 1948 there was filed in said county court an information, charging the defendants Charles Stout and Harry McCarthy with the crime of unlawful conspiracy to violate the prohibition laws of the state of Oklahoma. The conspiracy allegedly was made and entered into on December 19, 1947 in Tulsa County, Oklahoma. The charge was laid under the provisions of Title 21, § 421, O.S.A.1941, reading in part as follows, to-wit: 'If two or more persons conspire, either: 1. To commit any crime; * * * they are guilty of a misdemeanor.' Title 21, § 10, O.S.A.1941, fixes the punishment at not to exceed one year imprisonment in the county jail or by a fine not exceeding $500.00, or both such fine and imprisonment. To this information a demurrer was filed alleging among other legal grounds that the information did not charge an offense against the criminal laws of the state of Oklahoma. The county court sustained said demurrer on February 7, 1948. In sustaining the demurrer, with exceptions to the state, the trial court entered its order reading in part as follows, to-wit: 'It is further ordered, adjudged and decreed by this court that the action filed herein be dismissed and that the bond posted by the defendants be exonerated.'

The said journal entry of judgment thereafter further recites: 'Thereupon and in open court, the plaintiff gave notice of its intention to appeal to the Criminal Court of Appeals of the State of Oklahoma, upon the question of law involved herein, * * *.' (Emphasis supplied.)

Under the provisions of Title 22, § 1053, O.S.A.1941, the state may appeal in the following cases:

'Appeals to the Criminal Court of Appeals may be taken by the State in the following cases and no other:

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

'2. Upon an order of the court arresting the judgment.

'3. Upon a question reserved by the State.'

Appeals by the state on the foregoing grounds have been recognized in numerous cases (see annotations to the statute). In State v. Moyers, Okl.Cr.App., 189 P.2d 952, 955, not yet reported in State reports, we said: '* * * An appeal upon a question reserved by the State does not bring up any part of the trial or proceedings of the case except the question reserved and the judgment of acquittal, and if such question reserved is decided in favor of the State, it simply settles that question of law and does not affect the verdict of acquittal.'

Under the law the case must stand or fall on the reserved question. The order of the county court in sustaining the demurrer was predicated upon the cases of Taylor v. State, 38 Okl.Cr. 350, 261 P. 978; Thomas v. State, 38 Okl.Cr. 379, 262 P. 503, and Baldwin v. State, 40 Okl.Cr. 7, 266 P. 795, holding in effect that the conspiracy merges in the overt act, and therefore the prosecution on a charge of conspiracy to violate the prohibition law would not lie, as being unconstitutional and in conflict with Art. 1, § 7 of the Constitution (the Prohibition Act), in that the said constitutional provision fixed a minimum penalty of $50.00 fine and 30 days in jail, while Title 21, § 421 provided no minimum penalty. Subsequent to the rendition of the opinions in the Taylor and Thomas cases, supra, and on September 10, 1941, a unanimous court including Judge Doyle who wrote the opinion in the Taylor case upon which the opinion in the Thomas and Baldwin cases were predicated, rejected the rule of merger and held that the crime of conspiracy does not merge in the unlawful acts described as overt acts in the information, where the conspiracy is a definite crime and not an essential part of the crime to accomplish that for which the conspiracy was formed. See Burns v. State, 72 Okl.Cr. 432, 117 P.2d 155, referring to but not overruling Taylor v. State, supra, and then followed McCreary & Hughes v. Venable, Okl.Cr.App., 190 P.2d 467, not yet reported in State reports, which was handed down on February 25, 1948, controlling herein and overruling Taylor v. State, supra; Thomas v. State, supra, and Baldwin v. State, supra. Such is now the settled law of this state and the reserved question is moot. But the controversy does not end here. There are two other questions herewith presented, which we deem of such importance as to require an answer.

In the petition in error on the reserved question the state prays that the judgment and order of the county court be corrected by reversing the same, and in its brief requests a reinstatement of the case for trial on its merits. In the journal entry of judgment sustaining the demurrer, the trial court dismissed the action against the defendants and exonerated them on their bonds. The defendants contend that no appeal was taken from the order sustaining the demurrer, dismissing the information discharging the defendants and exonerating them on their bonds and that the judgment is final and the case can therefore not be reinstated for trial on its merits. In this connection they cite State v. Young, 20 Okl.Cr. 383, 203 P. 484; State v. Robertson, 28 Okl.Cr. 234, 230 P. 932. The defendants contend that such being the case nothing further than a ruling on the reserved question of law can be accomplished by this appeal. The defendants quote from State v. Robertson, supra, as follows: 'The state has the right to appeal from an order sustaining a demurrer to an indictment or information. Such an appeal reserves for decision only a question of law where the indictment or information is dismissed and the defendant discharged without direction or permission by the trial court to amend the information or that the indictment be submitted to that or another grand jury.' And from the body of the opinion 28 Okl.Cr. at page 241, 230 P. at page 934, as follows: 'WHETHER OR NOT THE INDICTMENT STATES A CrimE as against this defendant in error is not of material importance to the state, as under the statutes as they now exist the state has no charge pending against him as the judgment rendered in this case by the trial court constituted a complete bar to any subsequent prosecution against him for the same alleged offense.'

In support of this contention they further cite State v. Waldrep, 80 Okl.Cr. 230, 158 P.2d 368; State v. Gray, 71 Okl.Cr. 309, 111 P.2d 514, felony cases. An examination of these cases disclose that they are bottomed upon the provisions of Title 22, § 508, O.S.A. 1941, as follows, to-wit: 'If the demurrer is sustained, the judgment is final upon the indictment or information demurred to, and is a bar to another prosecution for the same offense, unless the court, being of opinion that the objection on which the demurrer is sustained may be avoided in a new indictment or information, direct the case to be resubmitted to the same or another grand jury, or that a new information be filed.'

The contention of the defendants would be controlling if the offense charged were a felony but such is not the case at bar, since the offense charged is only a misdemeanor. This court has held that Title 22, § 508, O.S.A. 1941, applies only to felony cases and does not apply to misdemeanor cases. Ex parte Dodson, 3 Okl.Cr. 514, 107 P. 450; Green v State, 33...