W.L. Garnsey (hereinafter designated defendant) was prosecuted for the crime of rape, alleged to have been committed in Beaver county, territory of Oklahoma on the *Page 548 20th day of April, 1907. On May 4, 1907, an information charging the crime of rape was filed before a justice of the peace. Defendant was arrested, waived examination, and was bound over to await the action of the district court. On February 29, 1908, no grand jury action having been taken thereon, the county attorney filed a duly verified information in the district court of Beaver county, charging defendant with the crime of rape. Defendant filed a general demurrer to said information, which demurrer was overruled and exception allowed. On this information defendant was tried and found guilty of the crime of rape, and on the 20th day of March, 1909, was by the court sentenced to imprisonment for five years at hard labor in the state penitentiary. From this judgment and sentence defendant perfected an appeal by filing with the clerk of this court on May 4, 1909, his petition in error with a duly certified transcript of the record attached thereto, together with proof of service of notices of appeal.
Counsel for defendant contend that:
"The district court of Beaver county, state of Oklahoma, erred in permitting the prosecution of the plaintiff in error upon the charge of having committed a felony in the territory of Oklahoma, prior to the adoption of the Constitution of the state of Oklahoma, upon information of any kind, and without an indictment duly returned by the grand jury of said county."
On June 8, 1910, on the part of the state, there was filed a confession of error, which concludes as follows:
"The Attorney General concurs with the contention of counsel for defendant that the district court of Beaver county was without jurisdiction to proceed to the trial of defendant for the crime charged by information, and therefore, in view of the decisions of this honorable court in the cases above cited (Reedv. State, 2 Okla. Cr. 589, 103 P. 1042; Hayes v. State,3 Okla. Cr. 1, 103 P. 1061), confesses that this cause should be reversed and the same remanded to the district court of Beaver county, there to be proceeded with in accordance to law."
The only question which the record presents is: Can the state proceed by information against a person charged with the commission of a felony before statehood, or must the proceedings *Page 549 in such cases be by indictment? Otherwise stated: Is the provision of the state Constitution which provides for the prosecution of felonies by information ex post facto as to offenses committed prior to statehood? This question has not been directly passed upon by this court. As it is involved in several pending causes, we will here state our views.
The offense is alleged to have been committed prior to statehood, in that part of the territory of Oklahoma which was formerly a part of the republic of Texas; however, a greater portion of the area now constituting the state of Oklahoma was included within the province of Louisiana.
Article 3 of the treaty ceding Louisiana to the United States provided that:
"The inhabitants of the ceded territory shall be incorporated in the union of the United States, and admitted as soon as possible, according to the principles of the federal Constitution, to the enjoyment of all the rights, advantages and immunities of citizens of the United States." (8 Stat. 200.)
The fifth article of the amendments to the Constitution of the United States provides that:
"No person shall be held to answer for a capital, or otherwise, infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger."
The federal and state courts, without diversity of opinion, have uniformly held that the provisions of the Constitution of the United States do not apply to criminal prosecutions under state laws, except in cases where the states are named. The authorities have been reviewed by this court in the case of In reMcNaught, 1 Okla. Cr. 528, 99 P. 241, and need no further discussion here.
The Constitution of Oklahoma, by the enabling act, as well as by its own provisions, did not become operative until the President's proclamation of November 16, 1907. This was more than six months later than the time alleged in the information of the commission of the crime charged. It has been uniformly held by federal courts that the provisions of the Constitution of the United *Page 550 States apply to all criminal prosecutions in the organized territories.
In the case of Rassmussen v. United States, 197 U.S. 516, 25 Sup. Ct. 514, 49 L.Ed. 862, Mr. Justice White, who delivered the opinion of the court, fully reviewing the authorities, in part said:
"This brings us to the second proposition, which is * * * 2. That even if Alaska was incorporated into the United States, as it was not an organized territory, therefore, the provisions of the sixth amendment were not controlling on Congress when legislating for Alaska. We do not stop to demonstrate from original considerations the unsoundness of this contention and its irreconcilable conflict with the essential principles upon which our constitutional system of government rests. Nor do we think it is required to point out the inconsistency which would arise between various provisions of the Constitution if the proposition was admitted or the extreme extension, on the one hand, and the undue limitation on the other, of the powers of Congress which would be occasioned by conceding it. This is said, because, in our opinion, the unsoundness of the proposition is conclusively established by a long line of decisions. Webster v.Reid, 11 How. 437, 13 L.Ed. 761; Reynolds v. United States,98 U.S. 145, 25 L.Ed. 244; Callan v. Wilson, 127 U.S. 540, 8 Sup. Ct. 1301, 32 L.Ed. 223; American Publishing Co. v. Fisher,166 U.S. 464, 17 Sup. Ct. 618, 41 L.Ed. 1079; Springville v. Thomas,166 U.S. 707, 17 Sup. Ct. 717, 41 L.Ed. 1172; Thompson v. Utah,170 U.S. 343, 18 Sup. Ct. 620, 42 L.Ed. 1061; Capital TractionCo. v. Hof, 174 U.S. 1, 19 Sup. Ct. 580, 43 L.Ed. 873; Black v.Jackson, 177 U.S. 349, 20 Sup. Ct. 648, 44 L.Ed. 801. The argument by which the decisive force of the cases just cited is sought to be escaped is that as when the cases were decided there was legislation of Congress extending the Constitution to the District of Columbia or to the particular territory to which a case may have related, therefore, the decisions must be taken to have proceeded alone upon the statutes, and not upon the inherent application of the provisions of the fifth, sixth and seventh amendments to the District of Columbia or to an incorporated territory. And, upon the assumption that the cases are distinguishable from the present one upon the basis just stated, the argument proceeds to insist that the sixth amendment does not apply the territory of Alaska, because section 1891 of the Revised Statutes only extends the Constitution to the organized territories, in which, it is urged, Alaska is not em- *Page 551 braced. Whilst the premise as to the existence of legislation declaring the extension of the Constitution to the territories with which the cases were respectively concerned is well founded, the conclusion drawn from that fact is not justified. Without attempting to examine in detail the opinions in the various cases, in our judgment it clearly results from them that they substantially rested upon the proposition that where territory was a part of the United States the inhabitants thereof were entitled to the guaranties of the fifth, sixth and seventh amendments, and that the act or acts of Congress purporting to extend the Constitution were considered as declaratory merely of a result which existed independently by the inherent operation of the Constitution. It is true that in some of the opinions both the application of the Constitution and the statutory provisions declaring such application were referred to, but in others no reference to such statutes was made, and the cases proceeded upon a line of reasoning leaving room for no other view than that the conclusion of the court was rested upon the self-operative application of the Constitution. Springville v. Thomas, 166, U.S. 707, 17 Sup. Ct. 717, 41 L.Ed. 1172; Thompson v. Utah,170 U.S. 343, 18 Sup. Ct. 620, 42 L.Ed. 1061; Capital Traction Co. v.Hof, 174 U.S. 1, 19 Sup. Ct. 580, 43 L.Ed. 873; Black v.Jackson, 177 U.S. 349, 20 Sup. Ct. 648, 44 L.Ed. 801. And this result of the cases will be made clear by a brief reference to some of the opinions. In Thompson v. Utah, considering a law of the state of Utah, which provided that a jury in a criminal cause should consist of only eight persons, the statute was held to beex post facto and void in its application to felonies committed before the territory became a state, `because, in respect of such crimes, the Constitution of the United States gave the accused, at the time of the commission of his offense, the right to be tried by a jury of twelve persons, and made it impossible to deprive him of his liberty except by the unanimous verdict of such a jury.' In Springville v. Thomas, it was contended that the territorial Legislature of Utah was empowered by Congress, in the organic act of the territory, to dispense with unanimity of the jurors in rendering a verdict in a civil case. The court said (at page 708 of 166 U.S., at page 718 of 17 Sup. Ct. [41 L.Ed. 1172]): `In our opinion the seventh amendment secured unanimity in finding a verdict as an essential feature of trial by jury in common law cases, and the act of Congress could not impart the power to change the constitutional rule, and could not be treated as attempting to do so." *Page 552 Again, in Capital Traction Co. v. Hof, 174 U.S. 1, 5, 19 Sup. Ct. 580, 582 [43 L.Ed. 873], no reference whatever being made to the statute of February 21, 1871, extending the provisions of the Constitution to the District of Columbia (chapter 62, 16 Stat. 419) it was declared: `It is beyond doubt, at the present day, that the provisions of the Constitution of the United States securing the right of trial by jury, whether in civil or criminal cases, are applicable to the District of Columbia.' And in Blackv. Jackson, 177 U.S. 349, 363, 20 Sup. Ct. 648, 653 [44 L.Ed. 801] speaking of a law of the territory of Oklahoma, it was said: `And it also fails to recognize the provisions of the seventh amendment securing the right of trial by jury in "suits at common law," where the value in controversy exceeds $20. That amendment, so far as it secures the right of trial by jury, applies to judicial proceedings in the territories of the United States.Webster v. Reid, 11 How. 437, 460 [13 L.Ed. 761]; AmericanPublishing Co. v. Fisher, 166 U.S. 464, 466 [17 Sup. Ct. 618, 41 L.Ed. 1079]; Springville v. Thomas, 166 U.S. 707 [17 Sup. Ct. 717, 41 L.Ed. 1172]. So that a court of a territory authorized, as Oklahoma was, to pass laws not inconsistent with the Constitution of the United States (Act May 2, 1890, 26 Stat. 81, 84, c. 182, § 6), could not proceed in a "common-law" action as if it were a suit in equity and determine by mandatory injunction rights for the protection or enforcement of which there was a plain and adequate remedy at law, according to the established distinctions between law and equity.' As it conclusively results from the foregoing considerations that the sixth amendment to the Constitution was applicable to Alaska, and, as of course being applicable, it was controlling upon Congress in legislating for Alaska, it follows that the provision of the act of Congress under consideration, depriving persons accused of a misdemeanor in Alaska of a right to trial by a common-law jury, was repugnant to the Constitution and void."