DocketNumber: No. A-157.
Citation Numbers: 112 P. 24, 4 Okla. Crim. 547
Judges: DOYLE, JUDGE.
Filed Date: 12/1/1910
Status: Precedential
Modified Date: 1/13/2023
"I am disposed to concur in the conclusion of the court upon the ground that, by the treaty of cession with Russia, it was provided that the inhabitants of the ceded Territory shall be admitted to enjoy all the rights, advantages, and immunities of citizens of the United States."
As the statute authorized, the court, pronounced a sentence of five years' confinement at hard labor in the state penitentiary. *Page 554
There can be no question but what defendant was charged with an infamous crime. Ex parte Wilson,
In Ex parte Wilson, supra, Mr. Justice Gray, after reviewing the history of the proposal, and adoption of this provision of the Constitution, used this language:
"The question is whether the crime is one for which the statutes authorize the court to award an infamous punishment; not whether the punishment ultimately awarded is an infamous one. When the accused is in danger of being subjected to an infamous punishment, if convicted, he has the right to insist that he shall not be put upon his trial except on the accusation of a grand jury. Nor can we accede to the proposition which has been sometimes maintained, that no crime is infamous, within the meaning of the fifth amendment, that has not been so declared by Congress. * * * For more than a century imprisonment at hard labor in the state prison or penitentiary, or other similar institution, has been considered an infamous punishment in England and America."
The laws of Oklahoma Territory provided (chapter 68, art. 6, par. 168 [section 5304] Wilson's Rev. Ann. St. 1903) that "Every felony must be prosecuted by indictment in the district court." The Enabling Act (Act June 16, 1906, c. 335, 34 Stat. 277) provides:
"Section 21. * * * All laws in force in the territory of Oklahoma at the time of the admission of said state into the Union shall be in force throughout said state, except as modified or changed by this act or by the Constitution of the state. * * *"
Section 20, as amended March 4, 1907 (Act March 4, 1907, c. 2911, § 3, 34 Stat. 1287):
"* * * All criminal cases pending in the United States courts in the Indian Territory, not transferred to the United States circuit or district courts in the state of Oklahoma, shall be prosecuted to a final determination in the state courts of Oklahoma under the laws now in force in that territory."
Section 1 of the Schedule of the Constitution provides: *Page 555
"No existing rights, actions, suits, proceedings, contracts or claims shall be affected by the change in the form of government, but all shall continue as if no change in the form of government had taken place."
These provisions of the Enabling Act and the Schedule preserve the rights of persons who are charged with the commission of offenses prior to the admission of the state, and render them liable to punishment under the law.
For this reason we are clearly of opinion that the constitutional provision providing for the prosecution of felonies by information was not intended to be retrospective or retroactive in its operation, and has reference only to prosecutions for crimes committed after statehood. However it is immaterial whether the Enabling Act permitted, or the framers of our Constitution intended to provide, a new method for the prosecution of crimes committed before statehood, because in respect to such crimes the Constitution of the United States gave to the accused an unalterable right to be accused by indictment only, and this provision of our state Constitution is ex postfacto in its application to felonies committed before Oklahoma was admitted as a state. The Constitution of the United States (section 9, pars. 3 and 10 of art. 1) prohibits the passing of expost facto laws.
The courts of several states have held that under the particular provisions of their state Constitutions the right to substitute prosecutions by information in place of prosecutions by indictment was within the limits of the legislative control over legal procedure and did not thereby disparage any substantial right or constitutional guaranty. State v. Kyle,
The distinction between legislative changes from time to time in methods of procedure and ex post facto laws is distinctly recognized in text-books and decisions. *Page 556
In the case of Thompson v. State of Utah,
"It is not necessary to review the numerous cases in which the courts have determined whether particular statutes come within the constitutional prohibition of ex post facto laws. It is sufficient now to say that a statute belongs to that class which by its necessary operation and `in its relation to the offense, or its consequences, alters the situation of the accused to his disadvantage.' U.S. v. Hall, 2 Wn. C.C. 366, Fed. Cas. No. 15,285; Kring v. Missouri,
That the right to be exempt from prosecution for an infamous crime, except upon presentment by a grand jury, is of the same nature as the right to a trial by a petit jury of the number fixed by the common law, has been held by the Supreme Court of the United States, in the case of Maxwell v. Dow,
"In our opinion the right to be exempt from prosecution for an infamous crime, except upon a presentment by a grand jury, is of the same nature as the right to a petit jury of the number *Page 558 fixed by the common law. * * * The right to be proceeded against only by indictment, and the right to a trial by 12 jurors, are of the same nature, and are subject to the same judgment, and the people in the several states have the same right to provide by their organic law for the change of both or either."
In Ex parte Bain,
"The importance of the part played by the grand jury in England cannot be better illustrated than by the language of Justice Field, in a Charge to a Grand Jury, reported in 2 Sawy. (U.S.) 667 [Fed. Cas. No. 18,255]: `The institution of the grand jury,' he says, `is of very ancient order in the history of England — it goes back many centuries. For a long period its powers were not clearly defined; and it would seem from the accounts of commentators on the laws of that country, that it was first a body which not only accused, but which also tried, public offenders. However this may have been in its origin, it was, at the time of the settlement of this country, an informing and accusing tribunal only, without whose previous action no person charged with a felony could, except in certain special cases, be put upon his trial. And in the struggles which at times arose in England between the powers of the king and the rights of the subject, it often stood as a barrier against prosecution in his name; until, at length, it came to be regarded as an institution by which the subject was rendered secure against oppression from unfounded prosecutions of the crown. In this country, from the popular character of our institutions, there has seldom been any contest between the government and the citizen which required the existence of the grand jury as a protection against oppressive action of the government. Yet the institution was adopted in this country, and is continued from considerations similar to those which give to it its chief value in England, and is designed as a means, not only of bringing to trial persons accused of public offenses upon just grounds, but also as a means of protecting the citizen against unfounded accusation, whether it comes from government, or be prompted by partisan passion or private enmity. No person shall be required, according to the fundamental law of the country, except in the cases mentioned, to answer for any of the higher crimes unless this body, consisting of not less than 16 nor more than 23 good *Page 559
and lawful men, selected from the body of the district, shall declare upon careful deliberation, under the solemnity of an oath, that there is good reason for his accusation and trial.' The case of Hurtado v. People,
The Supreme Court of Utah, after the decision of the Supreme Court of the United States in Thompson v. Utah, supra, held, in the case of State v. Rock, 20 Utah, 38, 57 P. 532, that:
"As to all offenses committed against the laws of Utah prior to its admission as a state, section 4688, Rev. St. 1898, alters the situation of a party charged with an offense committed prior to statehood to his disadvantage, and is an ex post facto law. A person charged with having committed an offense prior to statehood had a constitutional right, under the laws of Congress and the territorial laws then in effect, to be prosecuted only upon indictment presented by a grand jury, and he may not be prosecuted by way of information."
Justice Miner, delivering the opinion of the court, used this language:
"To hold that a state could deprive the accused of his liberty by examination before a magistrate, and by the filing of an information by the prosecuting attorney, without the presentment of an indictment found by a grand jury, for an offense committed while Utah was a territory, and under the laws of Congress, would be to recognize in a state power to do that which Congress could not do by legislation, and the right to take from the accused a constitutional right which belonged to him when the offense was committed. * * * Under the decision ofThompson v. Utah, supra, it must follow that the prosecuting attorney had no authority to file the information against the respondent for the offense committed prior to the admission of the state into the Union. The grand jury is the proper tribunal before whom the accused should be brought."
In McCarty v. State,
"One charged with a larceny in Washington Territory, prior to its admission as a state, is entitled under the Constitution of the United States to a presentment by a grand jury, and cannot be prosecuted by information under the authority of the Constitution of Washington and the act of January 29, 1890, in pursuance thereof, since the substitution of prosecution by information *Page 562 for that by indictment was not a mere change of procedure, but affected a substantial right, which could not be taken away by retroactive legislation."
See, also, State v. Kingsley,
In Miller v. State,
"In determining questions of federal cognizance, this court is bound to enforce the protection of the federal Constitution and to adopt and be governed by the rule of decision adjudicated in the Supreme Court of the United States."
Applying the principles of the foregoing authorities to the question presented, we believe they establish our conclusion, that the state cannot proceed by information against a person charged with the commission of a felony in the territory of Oklahoma before statehood. It may be that in a popular government the grand jury is not as important as it is when used to protect the citizen from the tyranny and oppression of kings, and that it is no longer considered one of the "greatest bulwarks of liberty." That a preliminary examination gives to the accused all the protection, and even more than he would have had from a grand jury, is a plausible argument that meets popular favor. Nevertheless, experience has shown that even in popular governments the rights and privileges of the citizen may be ruthlessly invaded, as shown by the conditions that led to the adoption of the fifth article of the amendments to the Constitution of the United States. The framers of our state Constitution provided that: "The Legislature may make the calling of a grand jury compulsory." Section 18, Bill of Rights. It may be, in the interest of good government, that the trial of offenses by indictment should be dispensed with; however, whether or not it is wise so to do is a question which is addressed to the people, and not to the courts.
The courts of this state, in exercising the jurisdiction conferred upon them by the Enabling Act and the state Constitution over crimes committed in Oklahoma Territory, cannot deprive *Page 563 the accused of substantial rights secured to him by the Constitution of the United States, such as depriving him of the right to be accused by indictment for an infamous crime, or the right to be tried by a common-law jury. The constitutional guaranty is a substantial right given by the law in force at the time the crime charged is alleged to have been committed, and any law which operates as a denial of this right alters the situation of the accused to his disadvantage, and is therefore ex postfacto as to such crime.
Adopting the language of Judge Denio, in Hartung v. People,
"No one can be criminally punished in this country except according to law prescribed for his government by the sovereign authority before the imputed offense was committed, and which existed as a law at the time."
A formal accusation is essential to every trial for crime. And, where the law requires a particular form of accusation, that form of accusation is essential. Without it the court acquires no jurisdiction to proceed. In the language of the Supreme Court of Massachusetts:
"Though it is desirable that all offenders against our penal laws should be punished, yet it is better that one should occasionally escape than that the fundamental principles of the criminal law should be violated." (Com. v. McDonough, 13 Allen, 581.)
We are of opinion that the district court of Beaver county did not, upon the case shown by the record, have jurisdiction to try, convict, and sentence defendant for a crime charged to have been committed in Oklahoma Territory.
The judgment is reversed, and the cause remanded.
FURMAN, PRESIDING JUDGE, and RICHARDSON, JUDGE, concur. *Page 564
Kring v. Missouri , 2 S. Ct. 443 ( 1883 )
Hurtado v. California , 4 S. Ct. 111 ( 1884 )
MacKin v. United States , 6 S. Ct. 777 ( 1886 )
United States v. DeWalt , 9 S. Ct. 111 ( 1888 )
Medley , 10 S. Ct. 384 ( 1890 )
Thompson v. Utah , 18 S. Ct. 620 ( 1898 )
McCarty v. State , 1 Wash. 377 ( 1890 )
Hopt v. Territory of Utah , 4 S. Ct. 202 ( 1884 )