Moss v. Arnold , 63 Okla. Crim. 343 ( 1938 )

I cannot concur in that part of the above opinion which seeks to go into and decide the validity of the information filed in this case. The only question, to my mind, here involved is whether or not a direct or indirect contempt was committed, and whether a writ of prohibition should be granted or denied to determine this question. From an examination of the briefs and the transcript of the evidence only in the contempt proceedings, I am of the opinion that if it should be found, as a matter of fact, that the petitioner committed the acts complained of, it would be a direct contempt and in the presence of the court. The mere fact that petitioner was sitting behind the court, and the court did not see his every movement, would to my mind not be a valid reason why the act was not in the presence of the court. With this part of the opinion I am in accord. The facts revealed by the briefs and the transcript that there are now pending in the district court of Oklahoma county numerous cases against numerous defendants growing out of the violation of the statute, and the informations filed in those cases, are similar to the information filed in the case at bar. I do not think the validity of the informations in those cases should be determined in this hearing, simply because the court might be requested to do so in the brief of counsel for petitioner. In the brief of respondent authorities from the courts of this state and other states are cited in support of the proposition that the validity of the information is and should not be involved in deciding the question presented in this hearing. Harrah v. Oldfield, 68 Okla. 30, 171 P. 333; MacThwaite Oil Gas Co. v. Bolen, 77 Okla. 155, 187 P. 221; Busey v. Crump,108 Okla. 73, 233 P. 714; Corley v. Adair County Court,10 Okla. Crim. 104, 134 P. 835; Whitney v. Superior Court of Alameda County, 182 Cal. 114, 187 P. 12. They then brief the question replying to the brief filed by petitioner, but the court is not urged to pass upon this question, and by their briefs they contend that it is not involved, and is not necessary to be passed upon in this hearing. If necessary, these cases can come before this court on direct appeal, and opportunity then could be had to determine the validity of the information filed, and the merits of the appeal could be passed upon when all the issues are before the court. The authorities above quoted set out the purpose and object of the writ of prohibition, and clearly it is not proper to go into questions which may be presented to the court by direct appeal. In this proceeding we have a party who has not been informed against, seeking a writ of prohibition, and asking the court to decide as to the validity of an information filed against other parties, and who are not parties to this proceeding. It does not occur to me that it is a sufficient answer that the decision will tend to avoid a multiplicity of suits. In the case of Evans v. Willis, 22 Okla. 310, 97 P. 1047, 1051, 19 L.R.A., N.S., 1050, 18 Ann. Cas. 258, Judge Williams, while a member of the Supreme Court of this state, said:

"Such extraordinary writ will not be awarded when the ordinary and usual remedies provided by law, such as appeal, writ of error, certiorari, or other modes of review or injunction, are available. Ex parte Smith, 23 Ala. 94; Ex parte Smith, 34 Ala. 455; Ex parte Scott, 47 Ala. 609; Ex parte Reid,50 Ala. 439; Ex parte Mobile, etc., R. Co., 63 Ala. 349; Weaver v. Leatherman, 66 Ark. 211, 49 S.W. 977."

And further says:

"The writ will not be issued on account of the inconvenience, expense, or delay of other remedies, but will be granted where the remedy available is insufficient to prevent immediate injury or hardship to the party complaining, particularly in criminal cases."

The propositions relied upon by the petitioner in this case are:

"1. The district court had no jurisdiction in the original action in which the alleged contempt was committed for the reason that the purported requisition was void on its face and not the subject of forgery and further the information wholly fails to state facts sufficient to charge forgery in the second degree, or any other crime under the laws of Oklahoma." and, "4. Prohibition is the proper remedy where an inferior court assumes to exercise judicial power not granted by law, or is attempting to make an excessive and unauthorized application of judicial force in a cause otherwise properly cognizable by it."

This question could be decided by the trial court by a demurrer to the information, the case tried on its merits, and if defendant was convicted an appeal may be had under the law, and all the questions involved decided on appeal. If it be held that this court should issue a writ of prohibition involving questions such as are raised here, the trial of cases in their regular order will be stopped, and applications made to this court for a writ of prohibition testing the validity of indictments and informations, on the ground that they do not state facts sufficient to charge a crime, and therefore the proceedings are void, and that the court is without jurisdiction to try the case. This will cause not only delay in the trial of criminal cases, but additional costs and inconveniences to the county and state. Witnesses will not be available when the case is finally reached. For this reason I am unable to agree that this extraordinary relief should be granted in cases of this character, even though the court might have a right to grant the relief. I am of the opinion that this mode of procedure will be a detriment rather than a benefit in the enforcement of the criminal laws of this state.

In the case of Ex parte Mobile, etc., R. Co., 63 Ala. 349, the court, speaking with reference to the writ of prohibition, quoted from Bacon as follows:

"A writ of prohibition will not lie, when a court has jurisdiction, and errs in its exercise. The writ lies, not for the correction of errors, but for the prevention of usurpation. 'The object of prohibitions, in general, is,' it is said in Bacon's Abridgment, 'the preservation of the right of the King's crown and courts, and the ease and quiet of the subject. For it is the wisdom and policy of the law to suppose both best preserved when everything runs in its right channel, according to the original jurisdiction of every court; for, by the same reason that one court might be allowed to enroach, another might; which could produce nothing but confusion and disorder in the administration of justice.' — 8 Bacon's Abr. 209."

Judge Furman, in an early opinion of this court, in the case of Corley et al. v. Adair County, 10 Okla. Crim. 104,134 P. 835, 837, had up for consideration a question wherein the district court of Adair county, being in regular session, entered an order reciting that the county attorney of Adair county was disqualified from appearing in his official capacity before the grand jury of his county in certain matters, which were to be investigated by the grand jury, and appointed another attorney as special attorney to go before and advise the grand jury with reference to such matters. The regularly elected county attorney of Adair county protested this order. The grand jury returned an indictment against petitioners charging them with conspiracy, and a motion was made to set aside the indictment on the ground that it was returned by a grand jury attended by an unauthorized party. The motion was overruled by the court, and a petition for writ of prohibition was filed in this court praying the court to prohibit the county court of Adair county from rendering judgment against said petitioners on said verdict, it being claimed that the proceedings and the indictment returned by the grand jury were void. In this case, Judge Furman said:

"The fact that an unauthorized person was present when the grand jury was deliberating upon this case would simply constitute a defect or irregularity which might be taken advantage of by the defendant or might be waived; therefore it would not make the indictment void. Where a county attorney is disqualified, the trial court has the right and it is its duty to appoint a special attorney to represent the state either before the grand jury or in open court. As to whether or not this power was properly exercised in the present case is a question which cannot be considered upon a petition for a writ of prohibition. Where the court has jurisdiction of the subject-matter and of the person of the defendant, the writ of prohibition will not lie on account of any irregularities in the action of the trial court. Appellate courts should not interfere with trial courts in such instances, but the courts should be permitted to proceed to judgment, and the matters complained of should be reviewed only upon appeal, when the entire transcript of the record can be brought up for consideration. It would paralyze and defeat the enforcement of criminal law if writs of prohibition were issued on account of irregularities where the trial court had jurisdiction of the subject-matter and of the person of the defendant. In other words, a writ of prohibition cannot be used for the purpose of appealing cases upon the installment plan. For these reasons we will not consider the question as to whether or not the action of the trial court in appointing Hon. R. Y. Nance as special county attorney was regular or irregular, but remit petitioner to their right to bring this case on appeal upon the entire record when all questions involved can be settled in one decision.

"The writ of prohibition, being an extraordinary remedy, can only be invoked in extreme cases; and, to prevent irreparable injury, the writ of prohibition is therefore denied." Jeter v. District Court of Tulsa County, 87 Okla. 3, 206 P. 831; State ex rel. Paul Chin v. Superior Court for King County, 139 Wash. 449,247 P. 738: In re Weaver, 162 Wis. 499, 156 N.W. 459; State v. Fischer, 175 Wis. 69, 184 N.W. 774; Hudspeth v. Tracey, 203 Ky. 277, 262 S.W. 260; 50 C.J. 689.

In the case at bar the court denies the writ of prohibition. This, to my mind, is proper and correct, but the court, after denying the writ, considers the same upon its merits and decides that the information filed in the case was valid. As stated in respondent's brief, after quoting the case of Corley v. Adair County, supra, it was said:

"It would paralyze and defeat the enforcement of criminal law if writs of prohibition were issued on account of irregularities where the trial court had jurisdiction of the subject-matter and of the person of the defendant."

In the case at bar the trial court had jurisdiction of the subject-matter and of the person of the defendant. The writ of prohibition is sought by strangers to the proceedings. I cannot, therefore, agree with that part of the opinion which passes upon the validity of the information without the case being regularly appealed to this court.

For the reasons above stated I do not think that this question should have been considered by the court in this proceeding.