The proposition presented by this proceeding involves a singular question of practice where misdemeanors are prosecuted by indictment.
The criminal procedure act, as adopted from Oklahoma Territory, provides:
Section 6750, Snyder's St.:
"Upon considering the demurrer, the court must give judgment either sustaining or overruling it, and an order to that effect must be entered upon the minutes."
Section 6751, Snyder's St.:
"If the demurrer is sustained, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same offense, unless the court, being of opinion that the objection on which the demurrer is sustained may be avoided in a new indictment, direct the case to be resubmitted to the same or another grand jury."
Section 6752, Snyder's St.:
"If the court do not direct the case to be resubmitted, the defendant, if in custody, must be discharged, or if admitted to bail, his bail is exonerated, or if he have deposited money instead of bail, the money must be refunded to him."
Section 6753, Snyder's St.:
"If the court direct that the case be resubmitted anew, the same proceedings must be had thereon as are prescribed in this act or in sections 6741, 6742 and 6743."
Section 7 of article 3, c. 48, Sess. Laws 1908, provides:
"For the trial of all criminal cases, now, or hereafter pending, or transferred in or to any county court, for the trial of all civil causes, now, or hereafter pending, in any county court, the pleadings, practice and procedure, shall be the same as that of the district court."
Counsel for petitioners contend in their brief that:
"In these cases, the county court having the authority and power to make such orders of resubmission the same as the district court, but failing or refusing, it is to be presumed, *Page 520 therefore, that said court did not consider that `the objection on which the demurrer was sustained might be avoided in a new indictment,' and, not having made such orders of resubmission, the said county court forever lost all further jurisdiction, power, authority, and control over any further or subsequent proceedings in said court against said defendants upon the same offenses, and also lost all further jurisdiction, power, and authority over the subject-matter or cause of action to charge, arrest, hold, commit to jail, or in any manner to restrain the defendants of their liberty."
And further argue that:
"In these cases we do not claim that we have ever been in jeopardy, nor do we contend that we have ever been acquitted, but we do contend in all seriousness that the county court of Cherokee county was, and now is, for the reasons already stated herein, without any jurisdiction to proceed further against these defendants upon these same charges under these informations. The statute says they shall be discharged, and the statute means what it says; nothing more, nothing less. Our plea and contention is not one in bar, but one of jurisdiction only; jurisdiction pure and simple; jurisdiction first, last, and all the time. The defendants have their choice of one of two things, namely, remain in jail for an indefinite period, wait for trials on the informations and interpose the defense of a plea in bar, and then stay in jail some more (for the agreed statement of facts shows that they cannot give the bail required and fixed by the county court), and await the slow process of appeal to procure justice and their liberty, or raise the question of the want of jurisdiction of the county court to proceed against them further under these informations by means of the writ of habeas corpus."
We are of the opinion that petitioners' contention is not well taken. The provisions of procedure criminal quoted cannot be extended to include indictments for misdemeanors. However, as this question has not hitherto been formally presented on appeal, we will not consider it.
It will be observed that section 6751, supra, requires that the resubmission must be made to a grand jury. As we view the law, this statute can have no application to misdemeanors prosecuted by indictment in county courts, for the reasons that such courts are without power or authority to direct a submission or a resubmission *Page 521 of a case to a grand jury. Section 6743, Snyder's St., provides:
"If the court direct that the case be resubmitted the defendant, if already in custody, must so remain, unless he be admitted to bail, or if already admitted to bail, or money have been deposited instead thereof, the bail or money is answerable for the appearance of the defendant to answer a new indictment. Unless a new indictment is found before the next grand jury of the county is discharged, the court must, on the discharge of such grand jury, make the order prescribed in the preceding section."
Prosecutions for misdemeanors may be by indictment or information, as they are concurrent remedies. Section 18 of the Bill of Rights, in part, provides:
"A grand jury shall be convened upon the order of a judge of a court having the power to try and determine felonies, upon his own motion; or such grand jury shall be ordered by such judge upon the filing of a petition therefor signed by one hundred resident taxpayers of the county; when so assembled such grand jury shall have power to investigate and return indictments for all character, and grades of crime."
Section 6751, supra, is clearly repugnant to this provision of the Constitution; both cannot operate together. Under the constitutional provision, the convening of a grand jury is an uncertain and undetermined matter, and should the county court, upon sustaining a demurrer, direct that the case be resubmitted anew, the defendant, if already in custody, must so remain unless he be admitted to bail, or, if already admitted to bail, the bail is answerable only for his appearance to answer to a new indictment. What certainty is there that the defendant would not spend the remainder of his natural life in jail? The county court cannot order that a grand jury be convened, and it is thus without power to afford the defendant the investigation for which he has been detained in custody. The district judge may convene a grand jury on his own motion or upon a proper petition; but, if a grand jury should be convened, what authority would a county court have over the same? And how could a county court enforce its order that a defendant's case be resubmitted to such grand jury? Thus the period of defendants' incarceration for want of bail *Page 522 would not depend upon the time or the happening of any certain event, but would be subject to the aforesaid indefinite and uncertain contingencies.
Our Constitution provides (section 20, Bill of Rights):
"In all criminal prosecutions the accused shall have the right to a speedy and public trial, by an impartial jury of the county in which the crime shall have been committed."
An order directing the resubmission of a case to a grand jury by a county court would be a denial of this constitutional guaranty. No court in this state has the power to commit a defendant indefinitely. As was said by Chancellor Pirtle, in Exparte Alexander, 2 Am. Law Reg. 44:
"A freeman should never, by the laws of freemen, be placed in such a dreary uncertainty of imprisonment as that, when he inquires of the `law of the land,' it cannot tell him when it shall end."
On the other hand, it certainly cannot be claimed with any show of reason that in such cases the county court may direct the county attorney to file an information against the defendant. Our law makes no such provision.
A proposition very similar to the question in the cases at bar was considered by this court in the case of Rea v. State,ante, p. 269, 105 P. 381, wherein section 6690, Snyder's St., was construed. Said section provides:
"The dismissal of the charge does not, however, prevent its being again submitted to a grand jury as often as the court may so direct. But without such direction it cannot be again submitted."
In the Rea Case the defendant filed a motion to quash the information on the ground the identical offense charged therein had been previously investigated by the grand jury, and such charge had been by said grand jury dismissed. An indictment was returned without an order of the court directing the resubmission of the case. This court there held:
"This statute has no application to offenses prosecuted by information, and the court did not err in overruling the motion to quash the information upon this ground." *Page 523
If the construction contended for by the petitioners should prevail, then, in every case of a defective indictment for a misdemeanor, it would only be necessary for the defendant to have a demurrer sustained in the county court, and he would have placed as effectual a bar to any further prosecution for that offense as a trial and verdict of acquittal would be. For the reasons stated, the doctrine, that to have a second prosecution in cases of demurrer sustained, depends upon the judicial opinion of the court, that the objections raised by the demurrer may be avoided on a new indictment, and, in the absence of such opinion or finding by the court, the prosecution for that offense is at end, has no application in cases of misdemeanors prosecuted by indictment in county courts.
The demurrers filed show that the objections made are not in bar to a future prosecution. As a matter of good practice, upon sustaining a demurrer to an indictment or a dismissal thereof, in the county court, the reasons for sustaining the demurrer or of the dismissal should be entered upon the minutes. Our Criminal Procedure provides generally (section 7052, Snyder's St.):
"An order for the dismissal of the action, as provided in this chapter, is not a bar to any other prosecution for the same offense."
As we view the law, the former indictment, the demurrer, and the judgment sustaining it in each of these cases — and it is admitted that each offense is identical, as the same now charged by information — do not constitute a bar to the further prosecution of said offenses by the informations filed, and the county court of Cherokee county has full jurisdiction of the offenses now pending on said informations.
For the reasons stated, the writ of habeas corpus is denied in each of said cases, and the petitioners are remanded to the custody of the sheriff of Cherokee county.
FURMAN, PRESIDING JUDGE, concurs. *Page 524