Warner v. Mathews

• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: DOYLE, J.
• Citation: Warner v. Mathews, 143 P. 516, 11 Okla. Crim. 122, 1914 OK CR 133 (Okla. Crim. App. 1914)
• Decision Date: 10 October 1914
• Docket Number: A-2166.
• Parties: WARNER v. MATHEWS, DISTRICT JUDGE.

143 P. 516

11 Okla.Crim. 122, 1914 OK CR 133

WARNER v. MATHEWS, DISTRICT JUDGE.

No. A-2166.

Court of Criminal Appeals of Oklahoma

October 10, 1914

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.

Wm. O Woolman, of Watonga, for petitioner.

C. J Davenport, Asst. Atty. Gen., and A. L. Bloss, Co. Atty Seymour Foose, and R. C. Brown, all of Watonga, for respondents.

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 have to be borne by him in each separate case.

Petitioner further states that he has no adequate remedy at law by appeal; that the ordinary remedy by appeal is not

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