State v. Young

G.W. Young, W.F. Whitson, and Ben Stephens, county commissioners of Carter county, C.C. Baker, acting county engineer of said county, and E.E. Gravelle and Tom Ellis were jointly indicted in the district court of Carter county for unlawfully conspiring for the purpose of preventing competition in the public letting of contracts for the construction of certain bridges and culverts on section F of the state highway in Carter county. The indictment was returned on the 2d day of January, 1919. The county attorney moved to transfer the indictment to the county court. On the 11th day of January, 1919, the motion was overruled, and the court, W.F. Freeman, presiding judge, ordered the indictment quashed and that the defendants be discharged. Thereafter, on the 26th day of March, 1919, on the motion of the county attorney, said indictment was transferred to the county court by order duly entered in the district court, Thos. W. Champion, presiding judge.

The defendants filed in the county court what they term "a plea to the jurisdiction of the court," on grounds substantially as follows:

"(1) That said district court has by an order not appealed from, which is a valid and binding order, quashed said indictment, and there is nothing before this court in consequence thereof to hear and determine.

"(2) That this court has no jurisdiction of this cause, because article 7, § 12, of the Constitution precludes county courts from trying any public officer for official misconduct in office, and article 7, § 10, of the Constitution confers on district courts jurisdiction to hear and determine all cases, except where exclusive jurisdiction is by the Constitution or by law conferred on some other court, and that the district court of Carter county is by the Constitution given exclusive jurisdiction to hear and determine this case."

The county court entered judgment sustaining this plea, and ordered that the defendants be discharged. The state reserved the question of jurisdiction and this judgment is now brought into review in this court.

Counsel for the state in their brief say:

"The sole question involved in this appeal is that of jurisdiction of the county court to try defendants under the charge preferred; and this question is itself twofold. In the first place it involves jurisdiction to try those defendants who were, at the time of the alleged offense, county officers and in the second place it involves jurisdiction in the absence of jurisdiction to try officers to try those defendants who are not officers upon a joint charge of conspiracy with such officers.

"Plaintiff in error first maintains that jurisdiction to try said defendants is vested exclusively in the county court, therefore the order of the district court quashing the indictment and discharging the defendants is a nullity; second, that the county court has jurisdiction to try defendants who were not officers, independent of jurisdiction to try said officers, while defendants in error contend that said county court has no such jurisdiction. If the contention of the defendants in error be correct, then said defendants are entitled to be discharged; if incorrect, the case should be remanded to the county court of Carter county for trial upon its merits, as to those over which said court has jurisdiction."

Counsel on both sides in their arguments pro and con erroneously assume that this indictment was for a conspiracy as defined by section 2232, Rev. Laws, which prescribes:

"If two or more persons conspire * * * to commit any crime, * * * they are guilty of a misdemeanor."

Section 12 of article 7 of the Constitution, among other things, provides that the county court shall not have jurisdiction in any action against officers for misconduct in office.

In Ex parte Moody, 3 Okla. Cr. 590, 108 P. 431, it is said:

"The prohibition contained in the Constitution against the exercise by the county court of jurisdiction in actions against officers for misconduct in office is not limited to actions for the removal of such officers from the positions which they occupy on account of the official misconduct, but extends to and includes any and all actions against such officers for misconduct in office, it matters not what the nature of the action or the punishment inflicted may be."

And see State ex rel. v. Russell, 33 Okla. 141,124 P. 1092.

We find no reason to doubt the correctness of the rule announced in the Moody Case. However, in the view we have taken of the disposition of this case, the fact that this is a charge of conspiracy against officers and private citizens is wholly immaterial. We think the indictment in this case charges a conspiracy as defined by chapter 260, p. 621, Session Laws 1915, which reads as follows:

"Section 1. If two or more persons conspire either to commit any offense against the state of Oklahoma, or to defraud the state of Oklahoma in any manner or for any purpose, and if one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars ($10,000.00) or to imprisonment for not more than two years or to both fine and imprisonment in the discretion of the court or jury."

Under the provisions of this section it is an offense against the state for two or more persons to conspire and agree together to prevent competition in the letting of a contract to do public work, and all who take part in such conspiracy while it is in execution, and all who with knowledge of the facts concur in the plans originally formed, and aid in executing them, are fellow conspirators.

The test by which to determine the question of jurisdiction to try the indictment in this case is, Does this section define an offense that is a felony? The definitions of "felony" and "misdemeanor" in this state are statutory, and not constitutional. Under the provisions of our Penal Code all crimes are classed as felonies or as misdemeanors, accordingly as they are or are not punishable by imprisonment in the penitentiary. Sections 2085, 2086, and 2087, Rev. Laws. And the test by which to determine whether an offense defined by the statute shall be deemed a felony or misdemeanor is made to depend upon whether the same is punishable by imprisonment in the penitentiary, or in the county jail. In statutes creating or defining offenses, the language usually expressly indicates whether the offense is to be deemed a felony or misdemeanor. It will be noticed that the statute under consideration is silent in reference to the place of imprisonment.

The statute in question was adopted from the federal statutes. Volume 2, § 5440 (U.S. Comp. St. § 10201). The language of this statute is almost identical with the language used in the federal statute. The offense defined by this section of the federal statute (section 5440) has by numerous decisions of the Supreme Court of the United States been held to be an infamous crime. Mackin v. U.S., 117 U.S. 348, 6 Sup. Ct. 777, 29 L.Ed. 909; U.S. v. De Walt, 128 U.S. 393, 9 Sup. Ct. 111, 32 L.Ed. 485; Parkinson v. U.S., 121 U.S. 282, 7 Sup. Ct. 896, 30 L.Ed. 959; In re Claasen, 140 U.S. 204, 11 Sup. Ct. 735, 35 L.Ed. 409; Ex parte Bain, 121 U.S. 12, 7 Sup. Ct. 781, 30 L.Ed. 849.

In Mackin v. U.S. it was held the offense defined by this section is an infamous crime, and persons cannot be held to answer otherwise than on the presentment or indictment of a grand jury. The test is whether the crime is one for which the statute authorizes the court to award an infamous punishment, not whether the punishment ultimately awarded is an infamous one.

Under the decisions of the Supreme Court of the United States, the test to be applied in determining whether an offense is an infamous crime is the character of the punishment which may be inflicted, and an infamous crime is one punishable by imprisonment in a state prison or penitentiary.

Wharton says that "infamous crimes" are convertible with "felonies." Whart. Cr. Law, par. 561.

It is said in Cooley, Const. Law, p. 29, the punishment of the penitentiary must always be deemed infamous, and so must any punishment which involves the loss of civil or political privileges.

It is a well-settled general rule that, when a statute enacted by one state is literally or substantially adopted by the Legislature of a sister state, or by Congress, or is imposed by Congress upon a United States territory, the judicial construction already placed upon it by the courts of the state where it originated accompanies the statute, and is to be treated as incorporated therein. State v. Caruthers, 1 Okla. Cr. 428,98 P. 474.

It follows as a sound rule of statutory construction that, when a statute enacted by Congress is literally adopted by the Legislature of this state, the judicial construction already placed upon it by the Supreme Court of the United States accompanies the statute, and is to be treated as incorporated therein, unless such construction would be in derogation of some general law.

Another rule is that a penal statute must be construed with such strictness as to carefully guard the rights of the accused, and at the same time preserve the obvious intention of the Legislature; what the legislative intention was, however, can be derived only from the words used in the statute.

In Ex parte Cain, 1 Okla. Cr. 7, 93 P. 974, the Supreme Court of this state, construing the penal clause of the prohibitory provision of the Constitution, which declares a violation of the provision "shall be punished on conviction thereof, by a fine of not less than fifty dollars and by imprisonment not less than thirty days for each offense," held this constitutional provision self-executing, and the offense therein created to be a misdemeanor, and that the word "imprisonment" in its ordinary sense contemplates and means within the common jail rather than the penitentiary.

In the opinion it is said that, under the statute (section 2091, Rev. Laws), the maximum punishment for said offense is imprisonment in the county jail not exceeding one year, and by a fine not exceeding $500, or both such fine and imprisonment. We think this definition does not apply where a statute creates or defines a crime which is punishable by imprisonment for a term of years, and we have no doubt that the word "imprisonment" as used in the statute in question has a broader signification, and empowers a court to sentence a person convicted to imprisonment in the penitentiary, when the punishment imposed is for a longer period than one year.

Answering the question of jurisdiction submitted for our decision, therefore, we say:

The district court of Carter county, and not the county court of said county, had exclusive jurisdiction to try the indictment in this case. Our Code of Criminal Procedure provides:

"The court may either of its own motion or upon the application of the county attorney, and in the furtherance of justice, order an action or indictment to be dismissed; but in that case the reasons of the dismissal must be set forth in the order, which must be entered upon the minutes." Section 6099, Rev. Laws.

In the State v. McDonald, 10 Okla. Cr. 413, 137 P. 362, it is said:

"The effect of this statute is to abolish the common-law right of the prosecuting attorney to nolle prosequi an indictment or information, except with the consent of the court. It goes further, and, under certain conditions, vests the trial judge with the power, whenever in his judgment the interest of justice may require it, to order the dismissal of an indictment or information, with or without the consent of the county attorney."

Our Code further provides that appeals to this court may be taken by the state "upon judgment for the defendant on quashing or setting aside an indictment or information." Section 5990, Rev. Laws.

It follows that, the state not having appealed from the judgment of the district court of Carter county quashing the indictment in this case, said judgment of dismissal is a finality.

MATSON and BESSEY, JJ., concur.