It is contended by counsel for the petitioner that he was unlawfully restrained of his liberty by the sheriff of Rogers county, state of Oklahoma, for the reason, notwithstanding the filing of an information, the trial and conviction in the county court of said county, that the alleged information was not predicated upon sworn proof, and that the testimony of P. Fisher, upon which the county attorney based the information charging the petitioner with the offense of unlawfully selling intoxicating liquors, was improperly obtained, and that said case comes within the law announced in the case of Ex parte Gudenoge, ante, p. 110,100 P. 39, in which this court held that:
"Under section 21 of the Bill of Rights (Bunn's Ed. § 30), which declares that `no person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided,' and section 27 of the Bill of Rights (Bunn's Ed. § 36), which provides that `any person having knowledge or possession of facts that tend to establish the guilt of any other person or corporation charged with an offense against the laws of the state, shall not be excused from giving testimony or producing evidence, when legally called upon so to do, on the ground that it may tend to incriminate him under the laws of the state; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing, *Page 435 concerning which he may so testify or produce evidence' — where a person is under examination before a county judge in an investigation into supposed violations of the prohibitory law, otherwise known as the `Enforcement Act' (Laws 1907-08, p. 604, c. 69), under the provisions of section 4 of said act he is not obliged to answer questions where his answers will tend to incriminate him, unless the inquisition is held for the purpose of inquiring into a complaint made, supported by affidavit, charging an offense against the provisions of the prohibitory law."
It must be borne in mind that Gudenoge was imprisoned for contempt of court, for refusing to give testimony before the county judge. The decision in the Gudenoge Case is based upon the proposition that there was no action pending before said county judge, or in said county court, which would subject him to the contempt of said court for failing or refusing to testify. Thus it will be seen that there is a marked distinction between the Gudenoge Case and the case at bar, for the reason that it is claimed by the petitioner that he should not be prosecuted for unlawfully selling intoxicating liquor, because the information against him is not predicated upon sworn testimony, or an affidavit authorizing the county attorney to file the information against him, contending that Fisher in the case at bar testified before the county court when in fact there was no case pending against any one in said court in which the evidence of Fisher would be competent. But it is admitted that Fisher testified before said county judge, signed his testimony and swore to it; said testimony thereby taking the form of an affidavit. Therefore, if the contention of counsel for the petitioner is correct, this court must first conclude that, because the evidence of Fisher was not given in an actual case pending in said court, because the affidavit sworn and subscribed to by him was not filed in a proceeding actually pending at the time said affidavit was made, then it could not be used to base an information upon. In other words, under the theory of counsel for petitioner, the affidavit made by Fisher, for the reasons contended for by him, would vanish into thin air, or would be suspended in mid-air beyond *Page 436 the reach of the county attorney, and therefore useless for any legal purpose. This position we cannot endorse. The facts stated in the affidavit were sworn to and subscribed by Fisher, remained in existence in proper form, and could legally be used by the county attorney on which to base an information; and, when the information based upon Fisher's affidavit was filed, the county court had jurisdiction. Therefore the trial court properly overruled petitioner's plea in abatement. The distinction between the case at bar and the Gudenoge Case is clear and concise. Gudenoge was imprisoned for refusing to testify under conditions and circumstances that were not authorized by law, and hence was not a witness in the sense that he could be punished for contempt, and therefore could not be guilty of contempt for failing to testify under such circumstances. Hence his incarceration was unauthorized and illegal, and habeas corpus was the proper remedy in that case.
It is also claimed by counsel for petitioner that the case ofEx parte Reynolds, 35 Tex. Crim. 437, 34 S.W. 120, 60 Am. St. Rep. 54, is analogous to the case at bar, upon the theory that the information, being based upon no affidavit, or upon an affidavit improperly obtained, was no information. We agree with counsel for the accused that, if the information in the case at bar was void ab initio, then the Texas case is in point. In Exparte Reynolds, supra, the court found that Reynolds was convicted and sentenced under an indictment found and returned by a jury composed of more men than is required by the law to constitute a legal grand jury, and was entitled to be released from custody upon a writ of habeas corpus, for the reason that he was restrained of his liberty upon an indictment and sentence which were absolutely void. If counsel were right in the claim that the information in the case at bar was absolutely void, then the remedy by habeas corpus would be proper; but in this counsel is not supported by the record.
For the reasons stated, the writ of habeas corpus should be, and is, denied the petitioner, at his cost. *Page 437
If the contentions of petitioner are true that his substantial rights have been violated, and that the judgment upon which his incarceration is based is illegal, then he has an adequate remedy by appeal to this court. This court feels that every man accused of crime is entitled to, and should be given, a full opportunity to make every proper and lawful defense guaranteed to him by law, and that if he feels aggrieved at the judgment of the trial court, and thinks he has not been accorded his legal rights, and therefore stands improperly convicted, and desires to appeal his case, he should be given an opportunity to perfect his appeal. Therefore, it is ordered by this court that the county court of Rogers county give the petitioner 30 days' additional time to the time originally given him by said court to prepare and serve his case-made in this case.
FURMAN, PRESIDING JUDGE, and DOYLE, JUDGE, concur.