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As a general rule there is but little virtue persons are living together in open and notoriin a dissenting opinion, and this one would ous adultery,held that, in a prosecution comnot have been written, except I entertain menced and carried on by the wife of defend

ant, the fact that defendant's wife obtained a the hope that by a presentation of the pre- divorce before his trial did not deprive the discise holding of the courts on this question trict court of jurisdiction to try the cause. and the real value as precedents of some of

[Ed. Note.-For other cases, see Adultery, the cases, it will tend to remove, as I view Cent. Dig. $8 8, 9; Dec. Dig. j 4.*] it, the misconception that the weight of 4. HABEAS CORPUS ($ 4*)-REMEDY BY WRIT

OF ERROR OR APPEAL. authority sustains the conclusion reached in

Appellate courts uniformly hold that the the majority opinion. However, failing in writ of habeas corpus is not to take the place this, I trust I have added a trifle to the of a writ of error or of an appeal. weight of argument of those authors and [Ed. Note.--For other cases, see Habeas Corcourts holding that it lacks the weight of pus, Cent. Dig. $ 4; Dec. Dig. & 4.*] reason, which, after all is the only thing of

(Syllabus by the Court.) real consequence. If the contract will, on oc

Original application by B. M. Cranford for casion, work out inequitable and unjust re-writ of habeas corpus. Writ denied. sults, if it can be cured, then the Legislatures or parties ought to change it. They have

B. M. Cranford, petitioner, was convicted the right to do so. Courts lack the author- in the district court of Pontotoc county of ity, and, exercising it, invade a domain dan- the crime of adultery, and was thereupon gerous alike to public and private weal. I sentenced to imprisonment in the state pristherefore conclude that the judgment of the on for a term of five years. trial court should be affirmed.

Crawford & Bolen, for petitioner. Charles In the foregoing conclusion I am authoriz- West, Atty. Gen., and Charles L. Moore, Asst. ed to say Justice HAYES concurs.

Atty. Gen., for the State.

LIEF.

DOYLE, J. On November 12, 1909, there

was filed in this court a petition duly verEx parte CRANFORD.

ified, praying that a writ of habeas corpus (Criminal Court of Appeals of Oklahoma. Nov. issue to T. J. Smith, sheriff of Pontotoc coun22, 1909.)

ty, and that, upon a hearing thereon, peti1. HABEAS CORPUS (8 30*)-GROUNDS FOR RE- tioner be discharged.

The petition, in substance, avers that on Section 4867, Wilson's Rey. & Ann. $t. the 12th day of June, 1909, Mary E. Cran1903, provides: “No court or judge shall inquire into the legality of any judgment or pro- ford, then the wife of petitioner, made comcess whereby the party is in custody, or dis- plaint on oath before H. J. Brown, a justice charge him when the term of commitment has of the peace of Pontotoc county, wherein penot expired, in either of the cases following: titioner was charged with the crime of adul* * * (2) Upon any process issued on any final judgment of a court of competent juris- tery; that on the 15th day of June, 1909, updiction." Held, upon application for writ of on a preliminary examination had before habeas corpus showing commitment on judg- said justice of the peace, petitioner was held ment of conviction for the crime of adultery, for trial in the district court of said county, that the writ be denied and rule to show cause for trial in the district court of said county, refused.

and on the 24th day of June, 1909, Robert [Ed. Note.-For other cases, see Habeas Cor-Wimbish, county attorney for said county, pus, Cent. Dig. $ 25; Dec. Dig. $ 30.*]

filed in the said district court an informa2. CRIMINAL LAW ($ 263*)-BENCH WARRANT tion charging petitioner with the crime of -BILL OF RIGHTS.

The declaration of section 30 of the Bill adultery, which information, omitting the tiof Rights that “no warrant shall issue but up- tle is as follows: “Comes now Robt. Wimon probable cause, supported by oath or af- bish, the duly qualified and acting county atfirmation, describing as particularly as may torney in and for Pontotoc county, state of be the place to be searched, and the person or Oklahoma, and gives the district court of the thing to be seized,” has no application to a bench warrant issued upon an information filed Seventh judicial district of said county and in the district court pursuant to the finding of state of Oklahoma to know and be informed an examining magistrate, wherein the party that the above-named defendant, B. M. Crancharged by complaint filed has been bound over on the finding of probable cause to await the ford, late of Pontotoc county, did in the year action of the district court.

of our Lord one thousand nine hundred and [Ed. Note. For other cases, see Criminal Law, nine commit the crime of adultery in the Cent, Dig. $$ 610, 611; Dec: Dig. 8 263.*]

manner and form as follows: Thàt is to say, 3. ADULTERY (8 4*)-PERSONS ENTITLED TO the said defendant did in said county and PROSECUTE.

state at the date above named unlawfully, Under section 2264, Wilson's Rev. & Ann. St. 1903, defining adultery, and requiring that willfully, and feloniously live in open and "prosecution for adultery can be commenced notorious adultery with one Maggie Jones, a and carried on against either of the parties to female person, the said B. M. Cranford bethe crime only by his or her own husband or ing then and there a male person and being wife, as the case may be, or by the husband or wife, of the other party to the crime: Provided. then and there lawfully married to another that any person may make complaint when female person, to wit, Mary E. Cranford; and the said B. M. Cranford, a male per- tled matter for the reason that same does not son, did then and there unlawfully, willfully, state facts sufficient to entitle the petitioner and feloniously and voluntarily have sexual to a discharge, in that it is immaterial that intercourse with one Maggie Jones, a female the complaining witness, Mary E. Cranford, person, the said B. M. Cranford being then had procured a divorce from the petitioner and there lawfully married to another fe after the commission of the alleged offense, male person, to wit, Mary E. Cranford, con- and after jurisdiction had attached over the trary to the form of the statute in such cases person of the petitioner and the subject-matmade and provided, and against the peace ter of the action before the trial was had and dignity of the state of Oklahoma. Robt. thereon, as the divorce granted for the adulWimbish, County Atty. State of Oklahoma, tery charge could not abate the offense, nor Pontotoc County. I, Robt. Wimbish, being divest the court of jurisdiction of the subduly sworn on oath do state that the facts ject-matter thereof. Second. That the irreguset out in the foregoing information are true larities complained of as to the verification based on lawful information and belief. of the information could not be attacked colRobt. Wimbish. Subscribed and sworn to laterally on habeas corpus, but could only by Robt. Wimbish this the 24th day of be attacked by appeal after objections made June, 1909. W. T. Cox, Clerk Dist. Court, in due time and exceptions saved to the acPontotoc Co. Okla.” Petitioner further avers tion of the trial court thereon." that he was again arrested upon a bench We are of opinion that the demurrer should warrant issued upon said information; that be sustained. It appears by the averments on the 13th day of October, 1909, he was of the petition that the issuance of the writ, tried and found guilty as charged; that on or a rule on said sheriff to show cause why the 9th day of November, 1909, the said court the writ of habeas corpus should not be is. rendered judgment on said verdict, and, in sued for petitioner's release, would result in accordance therewith, sentenced him to im- a return that said sheriff holds the prisonprisonment in the penitentiary for a term of er by virtue of the sentence of the district five years; that he is now held in the com- court of Pontotoc county. . The facts before mon jail of Pontotoc county in the custody of the court are precisely the same as if the said sheriff. Petitioner avers that said judg- writ of habeas corpus had been served or a ment is illegal and void, and his restraint rule to show cause had been made. The thereunder is illegal and unauthorized, for court can determine the rights of the petithe following reasons, to wit: “First, be- tioner to be released, upon the pleadings as cause the information is not verified as is correctly and with more convenience, in the required by law, the same being verified by administration of justice, then if the writ, the county attorney, based on lawful in- or a rule to show cause, had issued. Upon formation and belief, the sworn affidavit of principles which may be considered to be the said Mary E. Cranford not being attach- well settled in this court, it can have no ed to the information and made a part there right to issue this writ of habeas corpus as of, and no allegation in said information as a means of reviewing the judgment of the to what the lawful information was and no district court upon the ground of error in allegation that it was based on said affidavit its proceedings; but if it shall appear that of Mary E. Cranford, and was not positively the district court had no jurisdiction to rensworn to, as required by law, announced by der the judgment which it gave, and under this court in the Salter Case, 102 Pac. 719, which the petitioner is held a prisoner, it is and that said court had no jurisdiction of not only within the powers of this court, but the case, and that said judgment is abso- it is its duty to allow the writ of habeas lutely void; second, for the reason that Ma-corpus and discharge the petitioner. Ex ry E. Cranford, who had been the wife of parte Charles Johnson, 1 Okl. Cr. 414, 98 Pac. your petitioner at the time of the alleged 461; Ex parte Gudenege, 2 Okl. Cr. - 100 crime, filed a suit in the district court of Pac. 39; Ex parte. Mingle, 104 Pac. 68; Ex Pontotoc county, Okl., and on the 29th day parte Justus, 104 Pac. 933. If the district of June, 1909, and long before this case was court had jurisdiction of the person and the tried, obtained a divorce from this petition-offense for which the petitioner was tried, er, and that no notice of appeal was given and has not exceeded its powers in the senwithin 10 days, and that no appeal has been tence which it pronounced, this court can taken, and that at the time of the trial, ver- inquire no further. Whether the information dict, and judgment she was not the wife of sets forth in comprehensive terms the ofthis petitioner, and that no prosecution could fense, which the statute describes and forbe 'carried on' by her, but said suit was abat- bids, and for which it prescribes a punished; wherefore your petitioner asks that a ment, is in every case a question of law, writ of habeas corpus issue, and that upon which must necessarily be decided by the hearing he be discharged.” To this applica- trial court, and is therefore clearly within tion, the Attorney General filed a demurrer its jurisdiction. Its decision on the conformas follows: "Comes now on this 15th day of ity of the information to the requirements November, 1909, the Attorney General, and of the statute may be erroneous, but, if it for and upon behalf of the state of Oklaho- is so, it is an error of law of the trial court be corrected on an appeal, but which can affected the jurisdiction of the district court. not be looked into on a writ of habeas cor- Section 2264, Wilson's Rev. & Ann. St. 1903, pus limited to an inquiry into the existence prescribes: "Adultery is the unlawful vol. of the jurisdiction of the trial court. untary sexual intercourse of a married per

The jurisdiction of the district court is de- son with one of the opposite sex; and when nied in this case upon two grounds: First, the crime is between persons, only one of for the reason that the information is veri- whom is married, both are guilty of adulfied only on information and belief, and the tery. Prosecution for adultery can be comcase of Salter v. State, 102 Pac. 719, is re- menced and carried on against either of the ferred to. The principle enunciated in that parties to the crime only by his or her own case has no application to the case at bar. husband or wife, as the case may be or by In that case this court said: "But we limit the husband or wife of the other party to the decision to informations charging mis- the crime: Provided, that any person may demeanors. Informations in felony cases make complaint when persons are living toare to be tested, as near as may be, by gether in open and notorious adultery.” In the statutes regulating indictments, and we the case of In re Smith, 2 Okl. 153, 37 Pac. do not wish to indicate in advance what 1099 (decided at the June term, 1904), it was we should hold in a case where the informa- held: “That a prosecution for adultery cantion charges a felony.” The Constitution of not be commenced and carried on by a woOklahoma authorizes the prosecution of fel- man after she has obtained a decree of dionies by informations, but with the follow-vorcement from the party charged to have ing restrictions: Section 17, Bill of Rights, committed the crime.” This case is not in declares: "No person shall be prosecuted point for the reason that the prosecution in for a felony by information without having the Smith Case was under a law which was had a preliminary examination before an ex- amended in 1897 by the enactment of the amining magistrate, or having waived such present statute, which differs from the origpreliminary examination.” . In this case it inal statute in the supplemental proviso. And appears that upon a written complaint prop- in this information the charge is that the erly verified by the wife of the petitioner, adultery was open and notorious. wherein he was charged with the crime of For the reasons stated, the writ of habeas adultery, he was arrested, and upon a pre-corpus is denied, and a rule to show cause liminary examination the magistrate found is refused. that there was sufficient cause to believe him guilty as charged, and bound him over FURMAN, P. J., and OWEN, J., concur. to answer the same before the district court. This was sufficient finding of probable cause upon which to base the bench warrant, and

COX v. STATE. was not in violation of section 30 of the Bill of Rights.

(Criminal Court of Appeals of Oklahoma. Dec. The fact that the information was not

7, 1909.) positively sworn to could not affect the ju- CRIMINAL LAW (8 1133*)-APPEAL-PETITION

FOR REIIEARING REQUISITES AND SUFFIrisdiction of the district court; and the fact that the information does not recite that

A petition for a rehearing based upon the said prosecution was "in the name and by ground that a controlling decision which was the authority of the state of Oklahoma” not called to the attention of the court is in

conflict with the decision of which a rehearing (section 19, art. 7, Const.) is not a fatal de- is sought must show that such conflict exists. fect. Arie v. State, 1 Okl. Cr. 666, 100 Pac.

[Ed._Note.-For other cases, see Criminal 23, 33. In Caples v. State, 104 Pac. 493, Fur- Law, Dec. Dig. $ 1133.*] man, Presiding Judge, said: “It is not nec

(Syllabus by the Court.) essary that an information should contain the words 'in the name and by the authori

On motion for rehearing. Motion denied. ty of the state of Oklahoma.' It is sufficient

For former opinion, see 104 Pac. 1074. if it appears from the record of a case that Elliott & Howard, for appellant. the prosecution was carried on in the name and by the authority of the state. But this PER CURIAM. Rule 9 of this court (101 court suggests that, as a matter of good Pac. ix) governs applications for a rehearpleading, it would be well for informations ing. It is as follows: "(1) Application for to begin with these words."

a rehearing in any cause, unless otherwise It only remains to consider whether the ordered by the court, shall be made by a fact that the prosecuting witness, Mary E. petition to the court signed by counsel and Cranford, having obtained a divorce from filed with the clerk within fifteen days from petitioner before his trial, deprived the dis- the date on which the opinion in the cause trict court of the power of proceeding to try is filed. Such petition shall briefly state the petitioner and sentence him. We have the grounds upon which counsel relies for no difficulty in holding that the divorce se- a rehearing, and show either that some cured by the prosecuting witness in no way I question decisive of the case and duly sub

CIENCY.

•For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes mitted by the counsel has been overlooked quire some evidence of such acting together by the court, or that the decision is in con- before such acts and declarations of others flict with an express statute or controlling concerned in the commission of an offense decision, to which the attention of the court are admitted in evidence when such acts was not called, either in brief or oral argu- were not committed or statements were not ment, or which has been overlooked by the made in the presence of the defendant. Uncourt, and the question, statute, or decision der these rules of law, the question now preso overlooked must be distinctly and par- sents itself as to whether there is in the ticularly set forth in the petition. If such record any evidence that the defendant was application is granted, the cause shall be concerned with the Holmes and McKinley assigned for rehearing, and the clerk shall in the sale of intoxicating liquor, except the notify both parties or their counsel of the testimony as to the statements of Holmes time when such will be had, and such time and McKinley to the witnesses who testimay be given for argument or brief as the fied to such statements. * * There is court shall allow."

not one word of evidence in this record exThe petition for a rehearing is as follows: cept 'hearsay which proves, or tends to "Comes now B. C. Cox, the appellant in the prove, that the defendant was concerned above-entitled cause, and most respectfully with Holmes or McKinley in the sale of inshows the court: That on the 2d day of toxicating liquors. Page 66, 102 Pac. (3) November, 1909, a decree and judgment was That the court in affirming said judgment rendered by this honorable court against and sentence against this appellant overthis appellant, affirming a judgment and looked the rule laid down by this honorable sentence of the county court of Rogers court in the case of State v. Mask, 101 Pac. county, Okl., wherein the said county judge 293, where the court lays down this rule: of Rogers county did on the 9th day of 'Upon the trial for the offense of having posMarch, 1908, duly sentence this appellant session of intoxicating liquors with the into 60 days' imprisonment in the county jail tention of violating the provisions of the of Rogers county, and to pay a fine of $400 prohibition law, where no positive testiupon a charge of the unlawful sale of in- mony tending to show such possession was toxicating liquors charged to have been sold offered to show possession purely circumon or about January 23, 1908, in Rogers stantial and did not show actual or concounty, Okl. (1) That said decision affirming structive possession of such liquors as the judgment and sentence of the county charged, held, that the evidence is insufficourt of Rogers county against this appel- cient to sustain the conviction.' (4) That lant overlooked the decision of this honor- the court in affirming the judgment and able court in the case of Titsworth v. State, sentence in the case against this appellant 101 Pac. 288, which said case is controlling overlooked the rule as laid down by this in this case, and wherein this honorable court in the case of Lightle v. State, 101 court lays down the following rule: It is Pac. 608, wherein the court lays down the the present opinion of the writer that in following rule governing the introduction of cases against defendants for keeping intoxi- evidence, which rule is controlling in this cating liquors for sale the general reputa- case; said rule being as follows: 'Before tion of such places, in the community in liquor can be offered in evidence for the which they are situated, touching this point, inspection of the jury, such liquor must be is admissible in evidence, just as it is per- identified as having been in the possession missible to prove a general reputation of a and having been unlawfully disposed of by bawdyhouse, a gambling house, or of any the defendant.' The appellant further states place which constitutes a nuisance. Sec- to the court that the above decisions as tion 14, art. 3, of the enforcement act (page well as many other cases decided by this 608, c. 69, Sess. Laws 1907–08), expressly honorable court relative to the violation of makes such places where liquors of any the prohibition provisions of the Constitukind are sold, manufactured, bartered, ortion and laws of the state of Oklahoma given away or otherwise disposed of in vio- have been handed down by the court since lation of the law nuisances. This, however, the brief of the appellant was filed with this would not be true in cases in which the de- honorable court, and the decisions therefendant was charged with a specific sale of fore could not have been cited to the court such liquors. Such evidence would only be in said brief. Wherefore your petitioner, admissible where the defendant was charg- said appellant, prays the honorable court ed with keeping liquors for sale at a cer- to grant a rehearing in said cause, and that tain place. (2) That the court in affirming said cause may be reheard by this honorsaid judgment and sentence against this ap- able court. Respectfully submitted. Elliott pellant overlooked the rule as laid down & Howard, Attorneys for appellant.” While by this honorable court in the case of Stur- a number of the decisions of this court are gis v. State, 102 Pac. 57, which case is al-quoted from in the petition for a rehearing, most identical with the case of appellant, which it is claimed were overlooked by this and the decision of which case is controlling court, yet it is not alleged in a single inin this case, and the rule being laid by the stance that there is any conflict between the cision of the court in this case. In fact, no Clark Greenwood was convicted of procurattempt is made to show any such conflict. ing an abortion, and he brings error. AfIn failing to show or to attempt to show firmed. such conflict the petition is not in compliance with rule 9, and is therefore clearly of Comanche county the plaintiff in error was

At the January term of the district court insufficient, and fails to present anything indicted, charged with the crime of procuring for the consideration of this court.

an abortion. The charging part of the indictRehearing denied.

ment, as appears in the case-made, is as follows: “That on the

day of May, in

the year of our Lord, one thousand nine hunGREENWOOD v. STATE.

dred and six, at and within said county, and (Criminal Court of Appeals of Oklahoma. Dec. within the jurisdiction of said court, Clark 7, 1909.)

Greenwood, then and there being, did then 1. ABORTION ($ 1*)—“USE” OF INSTRUMENT- and there unlawfully, willfully, and feloniousWHAT CONSTITUTES.

ly advise and procure Ethel Carpenter, a An indictment, alleging, "That on the pregnant woman, to use certain instruments day of May, in the year of our Lord, one with the unlawful and felonious intent of thousand nine hundred and six, at and within said county, and within the jurisdiction of said him, the said Clark Greenwood, to procure court, Clark Greenwood, then and there being, the miscarriage of the said Ethel Carpenter; did then and there unlawfully, willfully, and the same not being necessary to preserve the feloniously advise and procure Ethel Carpenter, life of the said Ethel Carpenter.” The case a pregnant woman, to use certain instruments, with the unlawful and felonious intent of him was tried to a jury, defendant convicted and the said Clark Greenwood, to procure the mis- sentenced to imprisonment for a term of two carriage of the said Ethel Carpenter, the same years. A motion for new trial was filed and not being necessary to preserve the life of the said Ethel Carpenter," held sufficient to charge overruled, and exceptions saved. The case is an offense under section 2370, Snyder's Comp. before us on case-made. Laws, 1909 (section 2268, Wilson's Rev. & Ann. St. 1903), prohibiting the “use” of in

Al J. Jennings, for plaintiff in error. Chas. struments.

West, Atty. Gen., and Chas. L. Moore, Asst. [Ed. Note. For other cases, see Abortion, Atty. Gen., for the State. Cent. Dig. $ 1; Dec. Dig. $ 1.*

For other definitions, see Words and Phrases, vol. 8, pp. 7228-7237; vol. 8, p. 7825.]

OWEN, J. (after stating the facts as above).

Counsel for defendant, in the brief filed in 2. CRIMINAL LAW (8 59*) — “PRINCIPALS” WHO ARE.

this case, urge two assignments of error for All persons concerned in the commission of reversing the case. The reasons urged are: a crime, whether they directly commit the act "First. There is no public offense charged in constituting the offense, or aid and abet in its said indictment, -for the following reasons, commission, though not present, are "principals.” Section 2015, Snyder's Comp. Laws, 1909 (sec- viz.: The advising or procuring a pregnant tion 1948, Wilson's Rev. & Ann. St. 1903). woman to use instruments is not contemplat

[Ed. Note.--For other cases, see Criminal ed by the act itself, and because the pleader Law, Cent. Dig. § 71; Dec. Dig. § 59.*

failed to set out the name of the instrument For other definitions, see Words and Phrases, employed, and also failed to tell upon what vol. 6, pp. 5532-5557 ; vol. 8, p. 7763.] 3. INDICTMENT AND INFORMATION ($ 63*)- or instruments were used, and in what man

portion of complainant's body the instrument STATEMENT OF FACTS.

An indictment should recite the material ner. Second, there was no corroboration of facts and circumstances constituting the of- Ethel Carpenter, an accomplice.” The statfense, rather than charge that defendant has ute under which this prosecution was had committed a certain specified crime.

[Ed. Note.--For other cases, see Indictment (section 2370, Snyder's Comp. Laws, 1999; and Information, Cent. Dig. 8' 183; Dec. Dig. section 2268, Wilson's Rev. & Ann. St. 1903), § 63.*]

is as follows: "Every person who adminis(Syllabus by the Court.)

ters to any pregnant woman, or who pre4. CRIMINAL LAW (8 507*) -- TESTIMONY OF scribes for any such woman, or advises or “ACCOMPLICE”-CORROBORATION.

procures any such woman to take any mediA sister of a woman upon whom an abor: cine, drug or substance, or uses or employs tion was performed was not an “accomplice" any instrument, or other means whatever, whose uncorroborated testimony would not support a conviction, solely because, through sis- with intent thereby to procure the miscarterly affection, she went with her to the doc- riage of such woman, unless the same is tector's office, where she did not consent to the essary to preserve her life, is punishable abortion, but did all in her power to prevent by imprisonment in the state prison not exit.

[Ed. Note.-For other cases, see Criminal ceeding three years, or in a county jail not Law, Cent. Dig. $S 1082, 1083; Dec. Dig. & exceeding one year.” Does the indictment 507.*

charge the defendant with a violation of this For other definitions, see Words and Phrases, statute? This section prescribes a punishvol. 1, pp. 75-79; vol. 8, p. 7561.]

ment for every person who “uses” any instruError from District Court, Comanche Coun- ment with intent to procure the miscarriage. ty; J. T. Johnson, Judge.

The indictment alleges that the defendant

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