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tory, can be prosecuted only by indictment." petitioner for a felony alleged to have been
[3, 4] In the case of Bonaparte v. State, 4 committed in the Indian Territory before Okl. Cr. 603, 112 Pac. 917, it was held: “Ar- statehood. It follows that petitioner is unticle 5 of the amendments to the Constitution lawfully imprisoned under said judgment of of the United States, providing that ‘no per- conviction and commitment. son shall be held to answer for a capital or
Wherefore the writ of habeas corpus is alotherwise infamous crime, unless on a pre- lowed, and it is ordered that petitioner be sentment or indictment of a grand jury,' discharged from said judgment and commitguarantees to a defendant, charged with the ment and that respondent, the warden of commission of a felony in the Indian Terri- the penitentiary, deliver him to the custody tory prior to statehood, an unalterable right of the sheriff of Muskogee county. It is furto be accused by indictment only." And ther ordered that the clerk of this court that: “In such cases the indictment is a nec- forward the mandate in this case to the essary prerequisite to give the court juris-clerk of the district court of Muskogee coundiction."
ty, and that said clerk issue to the sheriff of In section 20 of the enabling act (Act June Muskogee county said mandate, directing 16, 1906, c. 3335, 34 Stat. 277), as amended said sheriff to present the same without deby act approved March 4, 1907 (Act March lay to the warden, and transport said peti4, 1907, c. 2911, $ 3, 34 Stat. 1287), it is pro- tioner to the county jail of Muskogee county, vided that: “All criminal cases pending in pending the further action of said district the United States courts in the Indian Terri- court. tory, not transferred to the United States Circuit or District Courts in the state of FURMAN, P. J., and ARMSTRONG, J., Oklahoma, shall be prosecuted to a final de concur. termination in the state courts of Oklahoma under the laws now in force in that terri
(5 Okl. Cr. 377) tory."
In Garnsey v. State, 4 Okl. Cr. 547, 112 CRAWFORD v. FERGUSON, County Judge. Pac. 24, the court said: “These provisions (Criminal Court of Appeals of Oklahoma. May of the enabling act and the schedule pre
2, 1911.) serve the rights of persons who are charged
(Syllabus by the Court.) with the commission of offenses prior to the
1. RIOT ($ 1*)_WIIAT CONSTITUTES. admission of the state, and render them lia
Where three or more persons, without auble to punishment under the law. For this thority of law, combine together, and by means reason we are clearly of opinion that the of threats to use force or yiolence, if accomconstitutional provision providing for the panied by immediate power of execution, seek
to accomplish any unlawful purpose, they are prosecution of felonies by information was guilty under the law of riot. not intended to be retrospective or retroac- [Ed. Note.-For other cases, see Riot, Cent. tive in its operation, and has reference only Dig. $$ 1-5; Dec. Dig. $ 1.* to prosecutions for crimes committed after For other definitions, see Words and Phrases, statehood. However, it is immaterial wheth- vol. 7, pp. 6240-6242.] er the enabling act permitted, or the framers 2. CRIMINAL LAW ($ 22*)-ENFORCEMENT OF of our Constitution intended to provide, a
The violation of law under the guise of atnew method for the prosecution of crimes tempting to enforce the law is not only illegal, committed before statehood, because in re- but it is anarchy. spect to such crimes the Constitution of the [Ed. Note.-For other cases, see Criminal United States gave to the accused an
Law, Dec. Dig. $ 22.*] alterable right to be accused by indictment 3. UNLAWFUL ASSEMBLY (8 1*)-LEGALITY OF only." And continuing, said: "The courts
PURPOSE-ENFORCEMENT OF LAWS. of this state, in exercising the jurisdiction peaceable manner, to combine together and or
The people have the right, in a quiet and conferred upon them by the enabling act and ganize for the purpose of assisting the officers the state Constitution over crimes committed in the enforcement of law, and they may also in Oklahoma Territory, cannot deprive the take. such steps as they may deem necessary accused of substantial rights secured to him such organization, taking care at all times to
for the purpose of carrying out the objects of by the Constitution of the United States, abstain from any illegal act or conduct. such as depriving him of the right to be ac- [Ed. Note.-For other cases, see Unlawful cused by indictment for an infamous crime, Assembly, Cent. Dig. $ 1; Dec. Dig. $ 1.*] or the right to be tried by a common-law 4. JUDGES ($ 49*)—CONDUCT-PARTICIPATION jury.”
IN PUBLIC MEETINGS. Under the decision of this court in the ticipating in public meetings in which questions
Judicial officers should abstain from parcase of Charley Thompson v. State, supra, are discussed which might afterwards come beand the uniform holding of this court in fore them for decision. A judge should not be numerous other cases, the district court of a partisan. Whenever he becomes a partisan, Muskogee county did not, upon the informa- his usefulness on the bench is greatly impair:
ed, if not entirely destroyed. tion filed by the county attorney, acquire ju
[Ed. Note. For other cases, see Judges, Dec. risdiction to try, convict, and sentence the Dig. & 49.* ]
5. JUDGES ($ 49*)–CONDUCT.
action of an organized mob, consisting of A judge should be careful not to commit more than one hundred persons, which mob himself upon questions of fact or law which visited a number of people in the town of may come before him for decision, until the matter is properly presented in open court, and Watonga who were supposed to be violators both parties have had ample opportunity to be of the prohibitory liquor law of the state, heard.
and commanded such persons to quit their (Ed. Note.--For other cases, see Judges, Cent. business and leave the town, and threatened Dig. $ 188; Dec. Dig. $ 49.*] 6. JUDGES ($ 49*)-DISQUALIFICATION-PREJU- mands of said organized mob were not com
said parties with violence in case the comDICE.
There is a great and manifest difference plied with; and that petitioner was a leader between being prejudiced against the commis- and one of the spokesmen of said mob. This sion of crime and being prejudiced against a application was duly sworn to by petitioner. crime. The fact that a judge is prejudiced This application being presented to respondagainst the commission of crime does not dis- ent, he declined to certify his disqualificaqualify him from presiding at a criminal trial, tion from presiding at the trial of said cause. Me is only disqualified when he has personal Therefore, on the 15th day of April, petibias or prejudice against the defendant, who is on trial before him, charged with the 'commis- tioner applied to this court for an alternasion of a crime.
tive writ of mandamus, requiring respond[Ed. Note. For other cases, see Judges, Cent.ent, either to certify his disqualification to Dig. $$ 187, 188; Dec. Dig. $ 49.*]
act as said judge or show cause for his re7. WITNESSES ($ 344*)—IMPEACHMENT_Occu- fusing to do so. The original application PATION-COMPANIONS.
While it is improper to impeach a witness for a change of judge as presented to reby showing that he has been indicted, arrested, spondent was attached to and made a part or imprisoned for crime, before conviction, yet of the petition for a writ of mandamus filed his occupation and companions are of his own in this court. This matter came on to be choosing, and may therefore be shown, when heard on the 24th day of April, 1911. Upon they indicate a want of moral character, for the purpose of impeaching his testimony. Slater a hearing of this case, respondent denied the y. U. S., 1 okl. Cr. 275, 98 Pac. 110, reaf- allegations contained in the petition for manfirmed.
damus. The petitioner filed a number of [Ed. Note:-For other cases, see. Witnesses affidavits sustaining the allegations containCent. Dig. $$ 1120, 1125; Dec. Dig. & 344.*]
ed in his petition. 8. WITNESSES ($ 345*)-IMPEACHMENT. When a witness has been convicted of boot
 It is a significant fact that 23 of these legging, or has the general reputation of being affidavits were acknowledged before the ata bootlegger, this fact may be shown for the torney for the petitioner. As this matter has purpose of affecting his credibility as a witness. not been passed upon by this court 'before,
[Ed. Note. -For other cases, seq Witnesses, we will not do more now than say that the Cent. Dig. $$ 1126-1128; Dec. Dig. $ 345.*] 9. AFFIDAVITS (8 5*)--AUTHORITY TO TAKE-authorities all denounce this practice. If ATTORNEYS-DISABILITIES.
it is permitted, the door is opened to all It is improper for a lawyer to act in the kinds of impositions and frauds. Such condouble capacity of a notary to take acknowledgments to affidavits, to be used in the trial duct must not be repeated. In the future of a case in which he is the attorney for one such affidavits will not be received or considof the parties.
ered, except as the basis of proceedings [Ed. Note.-For_other cases, see Affidavits, against the offending attorney. Cent. Dig. $ 20; Dec. Dig. $ 5.*]
If the facts stated in the petition for manPetition of J. P. Crawford for a writ of damus had been proved to be true beyond all mandamus to George W. Ferguson, County question, petitioner would be entitled to a Judge. Petition denied.
change of judge. The conduct therein set I. H. Lookabaugh, for petitioner. A. L. forth and described would not only be illeEmery, Co. Atty., and J. P. Wishard, Asst. gal, but it would amount to a riot. Section Co. Atty., for respondent.
2497 of Snyder's Comp. Laws of Okl. 1909,
is as follows: "Any use of force or violence, FURMAN, P. J. J. P. Crawford, the pe- or any threat to use force or violence if actitioner, being prosecuted by information companied by immediate power of execution, in the county court of Blaine county, Okl., by three or more persons acting together and charged with the offense of violating the without authority of law, is riot." probibitory liquor law of the state of Ok  It matters not how good their intenJahoma, on the 14th day of April, 1911, tions may be, if three or more persons, withmade application for a change of judge, out authority of law, combine together, and upon the ground that George W. Ferguson, by threats to use force or violence, if accomthe judge of the county court of Blaine coun- panied by immediate power of execution, ty, and the respondent herein, was so prej- seek to accomplish any unlawful purpose, udiced against petitioner that petitioner they are guilty sder the law of riot, and could not secure a fair and impartial trial liable to be imprisoned in the state penitenon said charge before respondent; and al- tiary for any period not less than three leging, further, that about the middle of years. March, 1911, respondent participated in the  A violation of law, when committed *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes
even for the purpose of enforcing the law, Counsel for petitioner did not give us any is not only illegal, but it is anarchy itself. information upon this subject. But this Therefore, if it were proven to this court matter was gone into by counsel for respondthat the facts stated in the petition for man-ent, and it was shown that these men were damus were true, it would be the duty of professional bootleggers, or the companions this court to issue the writ prayed for, it and associates of bootleggers. When the matters not what the intention of the par- hearing was through, the court, desiring to ties who committed the acts may have been, be fair and just to all parties and to coneven though such mandamus might involve demn no man without affording him an opevery man in Blaine county. When a viola- portunity to be heard, offered to allow eition of law has been proven, this court can-ther party to file additional affidavits, if they not, Pontius Pilate like, place its fingers up- desired. If the state's testimony as to the on the public pulse and sustain such violation character of petitioner's witnesses was not of law, even though it be demanded by the true, the attorney for petitioner should have entire people of a county. Therefore we have availed himself of this opportunity to susno hesitancy in saying that the showing tain the character of his witnesses, but he made by the petitioner, if not disproven, replied that he did not desire to file addiwould clearly entitle him to a change of tional affidavits. judge. Petitioner filed a great many affida In the case of Hendrix v. State, 4 Okl. vits sustaining his petition. Upon the hear-Cr. 612, 113 Pac. 244, this court said: “The ing of this matter, six reputable citizens of illegal sale of intoxicating liquor, wrong. Blaine county were placed upon the witness fully and deliberately committed, is an instand, and they denied every material alle moral, degrading, and degraded act, and is gation tending to establish prejudice on the committed only by the lawless and unreli. part of respondent contained in the petition able classes of our population. It is a matfor mandamus.
ter of common notoriety that in nine cases  In the case of Slater v. U. S., 1 Okl. Cr. out of ten the 'bootlegger' will not only not 275, 98 Pac. 110, this court held that it was hesitate to commit perjury in his own behalf, improper, for the purpose of impeaching a but also he expects every man to whom he witness, to ask him on cross-examination 11 vends his stuff to commit perjury for him, he had ever been indicted, arrested, or im- should the occasion arise. The unlawful prisoned for crime before conviction, but this sale of intoxicating liquor involves moral court also held, in the same case, that it is turpitude, and shows a want of moral charalways admissible to inquire into the ante-acter." cedents of a witness, by showing his occupa Counsel must take notice of the published tion, social connections, manner of living, decisions of this court and are chargeable and such matters, for the purpose of affect- with such knowledge. With the Hendrix ing his credibility. The reason for this dis-Case before him, counsel for petitioner knew tinction is that the indictment, arrest, and that a failure to sustain the character of imprisonment of a witness are involuntary his witnesses was a practical abandonment on the part of the witness, and result from of his case. We are therefore forced to acaccusations which are often prompted by cept the testimony of respondent upon this malice, and that they are not conclusive as question. An opportunity was given counsel to the guilt of the witness of the offense for petitioner to file further affidavits. He charged against him, but that the occupa- declined to do so. We are therefore comtion, companions, and associates of a witness pelled to believe that he could not rebut the are of his own choosing, and indicate his testimony of respondent upon this question. real character. To prevent any misconcep- In addition to this respondent filed a great tion upon this question, the case of Slater v. many affidavits from citizens of Blaine counU. S., above quoted, should be carefully ex- | ty, denying in toto the charges made by, amined. We have never modified, and do petitioner. A number of persons who were not expect to modify, any statement contain on the witness stand and who filed affidavits ed in that opinion.
in behalf of respondent are personally known  Upon the hearing of this matter, the to the members of this court as being among court invited information as to the witness the most reputable citizens, not only of es who had made affidavits in support of Blaine county, but also of the state of Oklathe petition for mandamus. The effect of homa. their affidavits was to charge respondent For the purpose of this decision, it is with having assisted in the organization of only necessary to copy in full the affidavit a mob, and with being one of the leaders in of Ex-Governor Ferguson, who justly ena riot. If these accusations were true, re- joys the confidence and respect of all who spondent should not preside at the trial of know him, and whom we believe to be incathis cause, but should be removed from office pable of intentionally misstating any matter and confined in the penitentiary as a com- of fact. His affidavit is as follows: mon felon. It was therefore important for this court to know who these men were who “State of Oklahoma, Blaine County_ss.: had made these serious charges against a "I, T. B. Ferguson, being first duly sworn,
Watonga, Blafre county, state of Oklahoma, gested, and give them notice that the law and have been most of the time since said would be enforced, and that their moral suptown was opened for settlement; that I am port was behind the officers; that said arespecially familiar with conditions which ex- rangements were made and G. W. Craven isted in said town during the fall of 1910 was named as spokesman; that George W. and the spring of 1911; that during the fall Ferguson had been in said meeting, and of 1910 it was an open and notorious fact when the meeting adjourned to wait upon that there were from four to five places in these different people the said George W. said town where intoxicating liquors could Ferguson told this affiant that they must be obtained in various quantities; that said be careful and see that no harsh or violent parties who seemed to control these different acts or language should be used or tolerated places where intoxicating liquors were dis by said members in any way. posed of were, to the best of my belief, eith "That affiant knows of his own knowledge er protected, or at least overlooked, by the that the said George W. Ferguson did not officers; that the community of Watonga and make a speech at said meeting, or at any the law-abiding people of said community other time, to bis knowledge, warning any were incensed against such open and no person under suspicion; that all he said in torious violations; that the incoming of substance was that the laws should be upficers who were elected at the election in held; that I was present at the speech he November, 1910, had promised that they made in said meeting, and that he did not would, if elected, see that these violations say that a jury would be got that would were taken care of; that several arrests stick all persons charged with the violation followed, after the taking of office by these of the law; that at no time have I seen the officers, but the bootleggers and their friends said George W. Ferguson do or say anything seemed to have an ostensible showing of that tended to show bias or prejudice for or influence against the arrest and prosecution against any persons accused of crime that of what is commonly termed 'bootleggers,' was brought to this court. and which is a misdemeanor charge (they "That, being a publisher of the Watonga would often, when attempted to be arrested, Republican, I have on numerous occasions try to evade the officers, and did in various visited and been present when the court, instances); that on the afternoon of the presided over by the said George W. Fergu14th day of March, A. D. 1911, S. E. South-son, was in session, and that at all times erland, sheriff of said county, having in his he seemed to conduct said court in a fair possession a warrant for a misdemeanor and impartial manner. charge, attempted to arrest one Joe Steils, "That at no time when said citizens so for the violation of the prohibitory law; that congregated together, and at a meeting which the said Joe Steils was in a buggy in com- was called a 'Law and Order' meeting, and pany with one Charlie Hawkins, at said at which law and order meeting said visitime; that they attempted to and did run tation was made, did the said George W. from said officer, driving said horse that was Ferguson say anything, to my knowledge, thereto hitched, at a dangerous and reckless nor was anything said by the spokesman, to speed, through the business streets of said tend to terrorize or intimidate any person town, in making their flight from said offi- called upon; that they were simply asked cer; that on one particular crossing of said to desist from further violation of the law, town they ran into a pedestrian crossing and told that if they did not do so law and said street and seriously injured her, in the order would be enforced. presence of a large number of people, who "That there were no unlawful acts by immediately gathered and helped the officer said citizens; that they were men of rearrest said defendant.
spectability and law-abiding citizens of the "That it was suggested at said time, by said town of Watongå; that no place or persome person to this affiant at this time un- son were mentioned, other than those that known, that they give their moral support were visited, nor any threats made, other than to the officers in the enforcement of the were executed, and that the whole idea and law, and that they organize some sort of so- object of said meeting and the warning of ciety showing that their moral support was people to desist from the violation of law in favor of the enforcement of the laws, was for the purpose of showing that violators duly enacted; that, pursuant to said sugges of the law that the good citizenship of Wation, a meeting was called at the courthouse tonga stood for law enforcement and the in the said town of Watonga; that a large upholding of the officers in the discharge of number of inhabitants of said towu, congre- their duties.
T. B. Ferguson. gated at said meeting, and, after appoint "Subscribed and sworn to before me this ing a committee on constitution and by
day of April, A. D. 1911. laws, different members suggested that a no
"W. C. Burt, tice of some kind be given to the various
Clerk County Court." persons who were knowingly violating the laws of the state; that it was the sense of This affidavit is in harmony with the oral the said meeting that they go as a body evidence offered on the trial of this cause, to these difference places, heretofore sug- and is a fair sample of the other affidavits
filed by respondent. In fact some of these | ion was for years attorney for the Antiaffidavits go more into details and state the Horse-Thief Association. He confesses to a conditions existing in Blaine county more strong prejudice against horse stealing, but strongly than they are stated by Governor he has no prejudice against any individual, Ferguson. At first it was feared that the simply because he may be charged with this woman who was run over as described by offense, until such person has been proven to Governor Ferguson was fatally injured. We be guilty by competent evidence, beyond a desire to commend the people of Blaine coun- reasonable doubt. On account of the infaty for their self-control and regard for law mous character of the crime, he would reand order, as is indicated by the fact that quire conclusive proof of the guilt of a dethey did not execute summary vengeance at fendant before believing him to be guilty. the time upon the man who drove his horse  We also desire to say that it is best for and buggy over this unoffending woman on judicial officers not to participate in public the streets of Watonga.
meetings in which questions are discussed  We think that under the conditions which may afterwards come before them for proven to exist in Blaine county, and describ- decision. Their conduct in the courtroom ed in the affidavit of Governor Ferguson, during the trial of a case should let the pubthat the people of Blaine county not only lic know their views with reference to the had the right to organize in a lawful manner enforcement of law, and it is far better that for the purpose of assisting the officers to they should abstain from giving public oral enforce the law, but that it was their duty expression to their views. A judge should to do so. No reputable witness testified to never be a partisan. Whenever he becomes a any disorderly act committed by the people partisan, his usefulness on the bench is at this meeting. It was proven upon the greatly impaired, if not entirely destroyed. trial of this cause that no threats of violence (5] He should never commit himself upon or profane language was used, and that no any question, either of fact or law, which is arms were carried by those who notified par- liable to come before him, until the matter ties who were under suspicion that they is properly presented in open court, and both must cease violating the law if they desired parties have had equal and ample opportunito remain in Blaine county, and that the ty to be heard. good people of the county were going to sup We are therefore of the opinion that it port the officers of the law in an honest would have been better if respondent had effort to enforce the law. We desire in this not participated in the public meeting which connection to say that all organizations hav- took place in Blaine county, Okl., and had ing for their purpose the enforcement of law not accompanied those who felt it to be their should exercise the greatest care to see that duty to warn persons who were under susthey themselves do not violate the law. The picion of having violated the law that if history of the Western states shows that in they desired to remain in Blaine county they many instances such organizations have gone must cease violating the law, and that the entirely too far, and have resulted in great people were going to assist the officers in disorder and bloodshed. We believe that the enforcing the law. But all the evidence for laws of Oklahoma, if properly enforced, af- the respondent shows that no threats of vioford ample means for punishing the guilty lence were made by those who gave this and thereby protecting society. We also be- warning, and that their conduct was quiet lieve that these laws can and will be proper- and orderly, and that their only purpose was ly enforced, when the people give the officers to give warning to parties who were under their moral support. We can see no lawful suspicion. We cannot therefore hold that reason or excuse why any body of men should their conduct was illegal, and, although we attempt to take the enforcement of the law believe that it would have been better if reinto their hands. Neither is there any spondent had not gone with these parties, reason why the people should not organize we cannot say that hi presence indicated to assist the officers in enforcing the laws. such a personal bias against the parties
One of the most useful organizations in the warned as would justify this court in holdstate is the Anti-Horse-Thief Association. ing that he was incompetent, on the ground The people have just as much right to or- of prejudice, from presiding at the trial of ganize to assist the officers to enforce the any person so warned. If the contention of law against the bootlegger, as they have to counsel for petitioner is correct, no judge organize to assist the officers to enforce the or jury should try a defendant who is charglaw against the horse thief. Of the two, the ed with a crime who are themselves opposed horse thief is the least dangerous to the lives to the commission of such crime; or, in other and character of the people, and the peace words, the idea of petitioner seems to be and good order of society. Who would say that the punishment of criminals should be that, because a juror or judge may belong to intrusted to those who sympathize with crim. or be in sympathy with the Anti-Horse-Thief inals. Association, he would thereby be disqualified  There is a great and manifest differfrom taking part in the trial of a defendant ence between prejudice against a crime and