I am unable to agree with the majority opinion of the court. In my opinion it violates the well-settled rules of statutory construction and several decisions of this court. The petition, the response, and the evidence and stipulation at the hearing disclose that petitioner, Peggy Drake, was charged with vagrancy in soliciting as a prostitute on the streets of Oklahoma City. She was arrested when she solicited a plain clothes police officer. After such arrest she was taken to police headquarters and a written complaint charging vagrancy signed by the officer was filed. This complaint was not verified at the time, though later, and, before this proceeding in habeas corpus was filed, the police judge attached his jurat thereto, although the officer did not verify the same. The proceedings are regular on their face.
A habeas corpus case such as this cannot take the place of an appeal or writ of error. It can only be invoked *Page 53 where the validity of the proceedings appear upon the face of the record. Ex parte Barnette, 29 Okla. Cr. 80, 232 P. 456; In re Talley, 4 Okla. Cr. 398, 112 P. 36, 31 L. R. A. (N. S.) 805; Ex parte Waldock, 142 Okla. 258, 286 P. 765.
Petitioner was arraigned on this complaint and entered a plea of guilty, was fined, and was incarcerated in the city jail, pursuant to said judgment of conviction. The majority opinion, in substance, holds that the last sentence of section 17, art. 2, of the state Constitution requires that the written complaint filed must be verified or the court is without jurisdiction, and a party so charged must be discharged on habeas corpus. The cases of Ex parte Bochmann, 20 Okla. Cr. 78,201 P. 537, 541, and Ex parte Mosgrove, 47 Okla. Cr. 40,287 P. 795, are relied on. The Bochmann Case, supra, is clearly not in point. In that case no written complaint was filed, but the municipal authorities were attempting to act under the provisions of section 650, Rev. Laws of 1910 (section 4639, Comp. Stat. 1921), providing that a complaint made by a marshal, assistant marshal, or policeman need not be in writing, which was held invalid. In that case, too, it did not appear that the offense for which petitioner was convicted was committed in the presence of the officer. The court there said:
"If a prosecution in a municipal court, under our Constitution and statutes, may be maintained without a written complaint against one in custody, arrested without a warrant, it necessarily follows that such arrest and custody must be for an offense committed or attempted in the presence of the officer. Otherwise, the arrest and detention of the accused would be in violation of both the Constitution and the statutes. It may be that the offense of vagrancy, according to the several definitions *Page 54 of the offense contained in the ordinance, could be committed in the presence of the arresting officer. Upon this point the record in this case is silent, and to obviate such uncertainties and possible miscarriage of justice there should be some kind of complaint or written accusation to promote and facilitate an orderly investigation of a specific, definite charge, to which the accused could intelligently plead and from which he could appeal if he so desired."
In that case there also was imposed a fine and costs greater than $20, which raised it above the degree of petit offenses and violated the rule announced in Ex parte Johnson,13 Okla. Cr. 30, 161 P. 1097; Ex parte Monroe, 13 Okla. Cr. 62,162 P. 233, and various other decisions of this court. The conviction in that case was further without any sworn testimony, in violation of section 650, Rev. Laws 1910, supra (section 4639, Comp. Stat. 1921). While the opinion refers to a verified complaint, there is nothing in that case sustaining the majority opinion.
In the case of Ex parte Mosgrove, supra, while the words "duly verified complaint" are used, it does not sustain the majority opinion. In that case there was no written complaint filed. The municipal authorities relied on section 650, Rev. Laws 1910 (section 4639, Comp. Stat. 1921), which had been held invalid in the Bochmann Case, supra. In the instant case a written complaint was filed, but was not verified at the time. In order to authorize the issuance of a warrant, the complaint must be verified. Section 2959, Comp. Stat. 1921. But, where a complaint is not verified, it is sufficient for all purposes, except to authorize the issuance of a warrant. The want of verification must be attacked by motion to quash the warrant, but, if a warrant is issued on such *Page 55 complaint and an accused is apprehended and submits to the jurisdiction of the magistrate, such defect is waived. Steiner v. State, 33 Okla. Cr. 298, 243 P. 1002. In this case it was said:
"* * * The law requires that a complaint be verified. Section 2959, Comp. Stat. 1921. This provision of the statute is intended to safeguard the personal security and liberty of the individual and to prevent the issuance of warrant and arrest upon baseless and unfounded prosecutions. An unverified complaint is sufficient for all purposes except the issuance of a warrant. The failure to verify may be waived, and is waived by proceeding without objecting to the sufficiency of the complaint on that ground to give jurisdiction of the person. Here the defendant made no objection to the preliminary complaint, but demanded and was awarded a preliminary hearing upon it. He did not challenge it until an information was filed in the superior court. The objection came too late. In re Talley, 112 P. 36, 4 Okla. Cr. 398, 31 L. R. A. (N. S.) 805; In re Cummings, 66 P. 332, 11 Okla. 286; Bergdahl v. People, 61 P. 228, 27 Colo. 302; State v. Brown, 79 S.W. 1111,181 Mo. 192."
If the verification could be waived in a felony case by submitting to the jurisdiction of the magistrate, there would appear to be much more reason for holding that the verification could be waived in a petit offense where the accused was arrested in the commission of the offense as in the instant case.
In the case of Brown v. State, 9 Okla. Cr. 382, 132 P. 359, a felony case, it was held that the court was not divested of jurisdiction, although the information was neither signed by the county attorney nor verified. The case of In re Talley,4 Okla. Cr. 409, 112 P. 36, 40, 31 L. R. A. (N. S.) 805, differs from the instant case, in that it was a prosecution for a felony, but the case is extremely *Page 56 pertinent as supporting the rule that the verification is no part of the complaint and may be waived, and in that case Richardson, Judge, speaking for this court, said:
"We take it as established, therefore, both on principle and by the authorities, that a defendant waives any objection which he may have to the information on account of a defective verification thereof or a total want of verification, by pleading thereto without moving to quash or set aside the information on that ground. He thereby admits what the verification is intended to show, namely, that there exists probable cause to believe him guilty; * * * and, after pleading to such information, he can no more take advantage of its want of verification than he could then take advantage of the fact that the indictment, if he were being prosecuted by indictment, was returned by the grand jury without hearing any evidence, or that the indictment was not indorsed 'a true bill,' and signed by the foreman of the grand jury, both of which matters by the terms of the statute are waived unless a timely motion to set aside is filed. It was even held by the Supreme Court of the United States, in an opinion rendered by Justice Brewer in the case of In re Wilson, 140 U.S. 575, 11 S.Ct. 870, 35 L.Ed. 513, that, if the law required that a grand jury be composed of not less than 17 nor more than 23 members, and a grand jury composed of only 15 members returned an indictment, 'the defect in the number of grand jurors did not vitiate the entire proceedings, so that they could be challenged collaterally on habeas corpus, but it was only a matter of error to be corrected by proceedings in error'; and that 'it is doubtful, at least, whether such defect is not waived if not taken advantage of before trial and judgment.' "
The following cases also support the rule that the failure to object before plea constitutes a waiver: Thayer v. State,16 Okla. Cr. 712, 183 P. 931; Simpson v. State,16 Okla. Cr. 533, 185 P. 116; Braught v. State, *Page 57 17 Okla. Cr. 1, 179 P. 769; Dismone v. U.S. (C. C. A.) 12 F.2d 63; People v. Clark, 211 Ill. App. 586; People v. Green, 200 Ill. App. 59, affirmed 276 Ill. 346, 114 N.E. 518; Schell v. People,65 Colo. 116, 173 P. 1141, L. R. A. 1918F, 954; Laffey v. People, 55 Colo. 575, 136 P. 1031.
For the reasons stated, I cannot assent to the majority opinion.