Syllabus
by the Court.
The
Criminal Court of Appeals will issue a writ of prohibition to
prohibit a district court from proceeding in a criminal
action of which it has no jurisdiction, and of which the
county court has exclusive jurisdiction.
The
Penal Code provides (Rev. Laws 1910, § 2092): "If there
be in any other chapter of the laws of this state a provision
making any specific act criminal and providing the punishment
therefor, and there be in this Penal Code any provision or
section making the same act a criminal offense, or
prescribing the punishment therefor, that offense and the
punishment thereof shall be governed by the special
provisions made in relation thereto, and not by the
provisions of this Penal Code." Held that, in a
prosecution against a district court clerk for failing and
refusing to pay fees charged and collected as clerk's
costs into the county treasury, the specific provision of the
fees and salaries act (section 3213, Rev. Laws 1910) must
govern as against provisions of the Penal Code.
Held, further, that when the alleged amount of fees
embezzled is $20 or less the information charges only a
misdemeanor, of which the county court has exclusive
jurisdiction.
Application
of E. J. Warner for writ of prohibition to the District Court
of Blaine County and Hon. Frank Mathews, Judge, to prohibit
further proceedings on certain informations filed against
petitioner. Writ awarded.
DOYLE
J.
This is
an application for a writ of prohibition to prohibit the
district court of Blaine county, and Hon. Frank Mathews, as
judge thereof, from proceeding further in the trial of three
informations filed in said district court, in each of which
petitioner is charged as clerk of the district court of
Blaine county with the crime of embezzlement of fees alleged
to be due from him to said county as such clerk. One of said
informations (omitting formal parts) is as follows:
"In the name and by the authority of the state of
Oklahoma, now comes A. L. Bloss, county attorney in and for
the county and state aforesaid, and gives the court to know
and be informed that one E. J. Warner at all times from the
9th day of January, A. D. 1911, until the 6th day of
December, A. D. 1912, was the duly elected, duly qualified
and acting clerk of the district court of Blaine county,
state of Oklahoma, and in said county and state, on or about
the 15th day of November, A. D. 1912, the sum of five dollars
good and lawful money of the United States, and of the value
of five dollars, the property of and owned by one Bessie
Wallace, was intrusted by the said Bessie Wallace, by and
through Amanda Mannen, to the said E. J. Warner in virtue of
his said office as clerk of said district court in the civil
action then pending in said court after judgment, wherein the
said Bessie Wallace was plaintiff and Winfield C. Wallace was
defendant, and numbered on said clerk's docket 2106,
which said money was so intrusted to the said E. J. Warner,
and then and there was received and accepted by and came into
the possession and under the control of the said E. J. Warner
in virtue of his said office as clerk of said district court,
for the purpose of being disbursed and applied by the said E.
J. Warner as such clerk to the payment in full of all the
costs of said civil action, which costs amounted to the sum
of five dollars, and consisted entirely of fees earned and
charged and taxed by said E. J. Warner as such clerk as costs
in said civil action, and due and payable and unpaid to said
Blaine county, and not paid into the county treasury of said
Blaine county and aggregating the sum of five dollars, and
said sum of five dollars so intrusted to the said E. J.
Warner as such clerk as aforesaid was then and there
sufficient in amount to pay and satisfy in full all the costs
of said civil action, and said civil action had been and was
then and there finally determined, disposed of, and closed,
except as to the matter of the payment of the costs therein,
and it then and there became and was the duty of said E. J.
Warner as such clerk of said court in said Blaine county, and
at the time said money in said sum of five dollars was
intrusted to him in virtue of his said office as aforesaid,
to disburse and apply the same to such purpose and in
fulfillment of such trust according, and to pay into the
county treasury
of said Blaine county said sum of five dollars so intrusted
to him in virtue of his said office as aforesaid in payment
and satisfaction and on account of said fees so earned and
charged and taxed by the said E. J. Warner as such clerk as
costs in said civil action, and due and payable and unpaid to
said Blaine county, and aggregating the sum of five dollars
as aforesaid; and thereafter, to wit, on or about the 3d day
of December, A. D. 1912, in said Blaine county, state of
Oklahoma, the said E. J. Warner did willfully, unlawfully,
feloniously, and fraudulently appropriate to his own use and
benefit, and to the use of other persons to the county
attorney unknown, but other than those entitled thereto, the
said sum of five dollars, good and lawful money of the United
States, and of the value of five dollars, being then and
there the said money in the sum of five dollars so intrusted
to him, the said E. J. Warner, in virtue of his said office
as clerk of said court as aforesaid, and the money due and
payable and unpaid to said Blaine county by payment into the
county treasury of said Blaine county as and on account of
said fees so earned, charged, and taxed by the said E. J.
Warner, as such clerk, as costs in said civil action, and
aggregating the sum of five dollars as aforesaid--contrary to
the form of the statute in such case made
and provided and against the peace and dignity of the state.
A. L. Bloss,
"County Attorney of Blaine County, State of
Oklahoma."
The
other two informations are the same in their general
allegations. In one it is alleged that in the case of Whirlow
v. Harrison et al., numbered on said clerk's docket 1938,
there was of the fees earned, charged, and taxed by said E.
J. Warner, as such clerk, as costs in said civil action,
payable and unpaid to Blaine county, and not paid into the
county treasury of Blaine county, the sum of $10.30. In the
other it is alleged that in the case of Seger v. Seger,
numbered on said clerk's docket 2092, there was of the
fees earned, charged, and taxed by said E. J. Warner, as such
clerk, as costs of said civil action, payable and unpaid to
the said Blaine county, and not paid into the county treasury
of said Blaine county, the sum of $5.70.
To each
of these informations the defendant filed a motion to quash
and interposed a demurrer thereto, on the ground that said
district court had no jurisdiction of the offenses charged or
attempted to be charged therein against this defendant, which
motions and demurrers were overruled by the court. Thereupon
the defendant entered pleas of not guilty, and the cases were
duly assigned and set for trial in said court.
It is
further averred in said petition:
"That the said district court, and the said Hon. Frank
Mathews, as the acting judge thereof, have no power or
authority to hear, try, and determine the said charges and
informations, and have no power or authority to assess or
inflict any punishment in said causes and the said
informations do not charge any offense the subject-matter of
which is within the jurisdiction of said district court. That
said charges and informations do not charge a felony, but
only misdemeanors, and if triable at all are within the
jurisdiction of the county court of Blaine county. That said
informations are each and all of them void. That the
proceedings and orders thereunder made by the said court and
the said judge thereof are void, the holding of this
petitioner to answer and to stand trial on said informations
and charges in said court is illegal and absolutely void, and
said proceedings are oppressive and unnecessarily vexatious
and can finally result only in abortive proceedings if
permitted to go on.
Petitioner further states that each of the above-named three
informations stand for separate trials in said court, and the
same will be tried separately and distinctly from each other.
Separate juries will be called in said causes, and in every
respect the expense incident to the trials and to the
defenses of criminal actions will have to be undergone in
each and all of said prosecutions, and the expense incident
to each trial by the defendant therein will
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