I am unable to agree with the conclusions reached by my colleagues in this case. The section of the statute referred to is as follows:
"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 6751, Snyder's Comp. Laws 1909.)
I cannot agree that this section has no application to prosecutions for misdemeanors by indictment. Section 3989, Snyder's Comp. Laws 1909 (Sess. Laws 1907-08, p. 474), is as follows:
"For the trial of all criminal cases, now, or hereafter pending, or transferred in or to any county court, and 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."
If this section has any meaning whatever, the county court must proceed in exactly the same manner as the district court would in a like case, and this is true after sustaining a demurrer as well as before. In my opinion, section 6751 either applies to prosecutions for misdemeanors, as well as felonies, or is unconstitutional. If it is repugnant to the provisions of the Constitution authorizing prosecutions by information, it can have no application in any case, for the reason that the procedure is identical in both the county and district courts.
This court said, in the case of Canard v. State,2 Okla. Cr. 505, 103 P. 737:
"We understand the rules governing prosecutions by informations to be identical to those covering prosecutions by indictment."
I understand the rule to be, in construing a statute with reference to the Constitution, the courts will not construe the statute so as to make it conflict with the Constitution, but rather put such interpretation upon it as will avoid conflict, if such construction *Page 525 be possible. It is the duty of the court to construe a statute as not being in conflict with the Constitution, if that construction can reasonably be arrived at. This rule was announced in the case of Ogden v. Saunders, 12 Wheat. 215, 6 L.Ed. 606. In that case the court said:
"They are not only to be presumed to be constitutional, but the authority of this court to declare them void will only be resorted to in a clear case of conflict."
In the case at bar, I do not believe it necessary to declare the statute in conflict with the Constitution. Certainly there is no clear case of conflict. Our Criminal Procedure Code was adopted from California. At the time of the adoption (1890), prosecutions could be had in the territorial courts of record by indictment only. Section 6751, supra, refers only to indictment. This section appeared in the California Code before adoption as follows:
"If the demurrer is allowed, the judgment is final upon the indictment or information demurred to, and is a bar to another prosecution for the same offense, unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment or information, direct the case to be submitted to the same or another grand jury, or directs a new information to be filed. * * *"
It will be observed that this section differs from ours only in that it uses the words "or information" in addition to the word "indictment." The purpose of that section is to give to the court passing on the demurrer the power to determine whether further prosecution shall be had. There is every reason for giving the court the power to determine whether the prosecution is meritorious and should continue. If for any reason a subsequent indictment or information could not cure the objection on which the demurrer is allowed, both the county and the defendant should be saved the costs and annoyance of a subsequent prosecution based on the same facts. It should not be left optional with the county attorney whether he continue further prosecution. He has discharged his duty when he reports the facts to the court in an indictment or information, and then it becomes the court's duty *Page 526 to determine whether the facts alleged warrant the prosecution. If he sustains the demurrer, he may direct the case to be resubmitted to a grand jury, or he may direct the case to be prosecuted by information. The mere fact that the county attorney might not be possessed with sufficient personal knowledge to verify the information, as required by the Constitution, does not change the law of procedure. Suffice it to say in the case at bar he did file informations. We are not trying the case on an imaginary condition. This court has no power to make laws or supply the deficiencies of the statute. We have discharged our duty when we construe the law as it is written. It is for the Legislature to enact a Code that will meet all emergencies.
It cannot be contended the court has not the power to direct the case to be prosecuted by information. The grant of power to determine whether prosecutions should be had carries with it all the powers to secure a prosecution according to law. As was said by the presiding judge of this court in the case of Ex parteJohnson, 1 Okla. Cr. 286, 97 P. 1023:
"The grant of power to do a certain thing necessarily carries with it the power to do all things which are necessary to the full accomplishment of the purpose had in view in granting the original power. To say that the court can direct a resubmission of a case to a subsequent grand jury, but is without power to hold the defendant in custody, or on bail, to answer an indictment which may be found, is to so construe the law as to result in its defeat, and thus render it absurd and abortive. It is a familiar principle of law that a statute must never be so construed as to defeat the plain purpose which it has in view."
Section 17 of the Bill of Right (section 26 Bunn's Ann. Ed.) authorizes prosecutions by information as well as by indictment, and, taken with section 6751, supra, gives us the procedure as it was in California prior to the adoption of the statute in Oklahoma Territory. This statute was construed by the Supreme Court of California in the case of People v. Jordan, 63 Cal. 219. In that case, pending a demurrer to an information, a new information was filed. Afterwards a demurrer was sustained, but no order was made directing the filing of a new information. The *Page 527 Supreme Court held that the judgment sustaining the demurrer to the first information was a bar to another prosecution, using the following language:
"It makes no difference that the second information was filed before the judgment on demurrer was rendered. There being no direction for a new information or resubmission, it became and was a bar to another prosecution for the same offense. The Legislature seem, in the section referred to, to have made a second prosecution in case of demurrer sustained depend upon the judicial opinion of the court that the objection raised by the demurrer may be avoided on a new information; and, in the absence of such opinion, the prosecution for that offense is at an end."
In the case of Ex parte Williams, reported in 116 Cal. 512, 48 P. 499, this section was again construed by the Supreme Court. The petitioner sought for discharge on habeas corpus on the following facts: "To the indictment charging him with forgery he interposed a demurrer, which demurrer was by the court sustained, `with leave to the district attorney to file a new information.'" The syllabus by the court is as follows:
"Under section 1008 of the Penal Code, the allowance of a demurrer to an information or indictment is a bar to another prosecution for the same offense, unless the court, being of opinion that the objection may be avoided by a new indictment or information, directs the case to be submitted to another grand jury or directs a new information to be filed; and where, upon sustaining a demurrer to an information, the court merely sustains it, `with leave to the district attorney to file a new information,' such permissive order is not equivalent to the direction or command contemplated by that section, the prosecution is at an end, and the prisoner cannot be held for trial under a new information, and will be discharged from custody upon habeas corpus."
Under a similar statute, the Supreme Court of Utah, in the case of State v. Crook, 16 Utah, 212, 51 P. 1091, said:
"The defendant's plea of former acquittal of the same offense charged in the information, by the judgment of the court sustaining the demurrer, and ordering the defendant discharged, without making an order directing another information to be filed, or that the cause be submitted to the grand jury, was, under the facts shown, a sufficient plea of former acquittal, and a bar to a prosecution under the third information filed. The information *Page 528 to which the demurrer was sustained and the information upon which the defendant was tried stated the same identical offense. The identity of the parties was admitted. We are of the opinion that the instruction of the court to the jury, to the effect that the judgment of the court in sustaining the demurrer to the second information and discharging the defendant thereon, without an order directing another information to be filed, would not amount to an acquittal of the defendant on that information, and the jury should so find, was error."
There is ample provision in the statute for dismissing an indictment by motion. Section 6690, Snyder's Comp. Laws 1909, provides:
"An order to set aside an indictment, as provided in this chapter, is no bar to a further prosecution for the same offense."
The statute makes a difference between setting aside the indictment on motion and sustaining a demurrer to an indictment. The statute specifically makes the sustaining of a demurrer to an indictment a bar to another offense, "unless the court be of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment."
In my opinion it is not necessary to hold section 6751 in conflict with the Constitution. On the contrary, it is enlarged by the provision of the Constitution permitting prosecutions by information, and where an indictment for misdemeanor has been transferred to the county court, and the defendant has filed a demurrer, it is the duty of the court in sustaining the demurrer to determine whether further prosecution shall be had, and, if in the opinion of the court the objection to the indictment may be avoided in a new indictment or information, to direct that the defendant be held, and that the county attorney proceed by information. The court did not do this, but ordered the defendant discharged.
In my opinion the application for writ of habeas corpus should be granted. *Page 529