In re Moran

Where the order of the court having authority to designate the place of trial for a newly organized county in Oklahoma is as precise as circumstances permit, the fact that it merely names the town, there being no county or court buildings at the time of trial, does not affect the jurisdiction of the court, where it dbes not appear that the party complaining lost any opportunities by reason of no building being named. Acts of the legislature of Oklahoma are not laws of the United States within the meaning of § 753, Rev. Slat.. The Fifth Amendment requiring the presentment or indictment of a grand jury does not take up unto itself the local law as to how the grand jury shall be made up, and raise the latter to a constitutional requirement. Under § 10 of the Organic Act of Oklahoma of May 2, 1890, 26 Stat. 85, the place of trial of a crime committed in territory not embraced in any organized county is in the county to which such territory shall be attached at the time of trial, although it might have been attached to another county when the crime was committed. Courts of Oklahoma Territory have jurisdiction to try a person for crime although committed in a part of the Territory not then opened for settlement, it appearing from the acts of Congress that title had passed to the Territory, and Congress was only exercising control so far as settlement was concerned. Whether a person on trial is compelled to be a witness against himself contrary to the Fifth Amendment because compelled to stand lip and walk before the jury, or because the jury was stationed during a recess so as to observe his size and walk, not decided, but held that it did not affect the jurisdiction of the trial court, and render the judgment void.

The .facts are stated in the opinion. The District Court that caused the indictment and trial of the petitioner was not organized as required by the act of Congress creating it. Sec. 69, p. 75, Wilson’s Ann. Stat. of Oklahoma. ■Both time and place are essential constituents of the organization of a court. Hobart v. Hobart, 45 Iowa, 503; Columbus v. Woolen Mills Co., 30 Indiana, 436; Greenwood v. Bradford, 128 Massachusetts, 296; King v. King, 1 P. M. W. 19; In re-Allison, 13 Colorado, 535; 21 Enc. PI. & Pr. 608; Northrup v. People, 37 N. Y. 203. ' When it is attempted to hold a term or session at a time and place different from those prescribed, all acts done thereat, other than those properly done in vacation, are as a general .rule absolutely void. Ex parte Cranch, 63 Alabama, 283; Boyn-ton v. Wilson, 46 Alabama, 510; Garland v. Dunn, 63 Alabama, 404; Wrightnor v. Carsner, 20 Alabama, 446; Napper v. Nolan, 9 Port. (Ala.) 218; Nabor v. State, 6 Alabama, 200; Neal v. Shinn, 49 Arkansas, 227; State v. Williams, 48 Arkansas, 225; Grimet v. Askew, 48 Arkansas, 151; Chapman v. Holmes, 47 Arkansas, 414; Hamm v. State, 22 Arkansas, 207; Brumley v. State, 20 Arkansas, 7*7; Ex parte Jones, 27 _ Arkansas* 349; Ex parte Osborn, 24 Arkansas, 379; Dunn v. State, 2 Arkansas, 229: Bates v. Gage, 40 California, 183; Clellan v. People, 40 Colorado, 244; American Fire Ins. Co. v. Pappe, 4 Oklahoma, 110; Irwin v. Irwin, 2 Oklahoma, 180. This court can go behind the judgment and coiiviction of the trial court and release ■ a party imprisoned in case the uncontradicted record shows that hi,s’'imprisonment is illegal. Ex parte.Neilson, 131 U. S. 176, 1S2; Ex parte-Lang, 18 Wall. 163; Ex parte Seibold, 100 U. S. 371; Ex parte Yerger, 8 Wall. 85; Ex parte Virginia,' 100 U. S. 333; Ex parte Carrol, 106 U. S. 521; Ex parte Yarbrough, 110 U. S. 651; Ex parte Bigelow, 113 U. S. 328; In re Cuddy, 131 U. S. 288; Ex parte Mayfield, 141 U. S. 107,' 116; Ex parte Bain, 121 U. S'. 1; In re Swan, 150 U. S. 648. Under' certain circumstances the record, of the trial court m^y be contradicted. In re Elmira Steel Co., 5 Am. Bank. Rep. 505, and cases decided by this court, cited to support same. The 'jurisdiction of any court may be challenged in .any other „court .where its decrees- or judgments are relied on, and the record of the judgment may be contradicted as to the facts necessary to give the court jurisdiction, and if it is shown 'that such facts did not exist the record will be a nullity, notwithstanding it may recite' that such facts did exist. Adams v. Terrill, 4- Fed. Rep. 796; Williamson v. Berrn, 8 Pet. 540; Elliott :v. JPiersol, 1 Pet..-328; United-States v. Arredondo, 6 Pet. 591; Voorhees v; Bank of ,U. S., 1Ó Pet. 475; Wilcox v. Jackson, 15 Pet. 511; Thompson v. Whiteman, 18 Wall. 457; Nooes v. Gas Light & Coke Co., .19 Wall. 58; Brown on Jurisdiction; 2d ed., §§ 101-103. . • It was a prerequisite to a legal conviction of the petitioner that he should have been indicted by'a legal grand jury. ■ If the legislature of the Territory of Oklahoma was without power to provide by law for the conviction of a- person charged with a capital or .otherwise infamous crime without a legal-indictment, then'the, court is likewise without power and authority to disregard the laws which are’in harmony with the provisions of the Constitution, and by that means deprive one of its citizens of those fundamental rights which the legislature had no power to do. The Circuit Court of Appeals erred in its decision in holding in effect that the legislature of Oklahoma could have provided by law for the conviction of the petitioner without the intervention and indictment of a grand jury. Hurtado v. California, 110 U. S. 516; McNulty v. California, 149 U. S. 645; Clinton v. Englebrecht, 13 Wall. 434, 448; Hornbuckle v. Toombs, 18 Wall. 648; Thompson v. Utah, 170 U. S. 344; National Bank v. Yankton, 101 U. S. 129; Webster v. Reed, 11 How. 433, 460; Am. Pub. Co. v. Fisher, 160 U. S. 464; Springville v. Thomas, 166 U. S. 707. There was a local law of the Territory in force providing for selecting, empaneling, and organizing a grand jury and prescribing the qualifications of same, which was in conflict with the common law procedure and was exclusive, and the failure of the court to substantially follow its provisions and disregarding, it in the manner of organizing a grand jury renders that body and its proceedings void was exclusive. Sharp v. United States, 138 Fed. Rep. 878; Clinton v. Englebrecht, 13 Wall. 434, 448; Crowley v. United States, 194 U. S. 461. When the common law and the statute differ the common law gives place to the statute. State v. Norton, 23 N. J. L. 33; Bent v. Thompson, 5 N. H. 408; Browning v. Browning, 2 N. Mex. 371; Leitensdorfer v. Webb, 1 N. Mex. 345; McKiUner v. Winn, 1 Oklahoma, 327; Utah First Nat’l Bank v. Kinner, 1 Utah, 100; People v. Greene, 1 Utah, 11; Luhrs v. Hancock, 181 U. S. 567; Pyeatt v. Powell, 51 Fed. Rep. 561. The common law is impliedly repealed by a statute which is inconsistent therewith, or which undertakes to revise and cover the whole subject-matter. 9 Enc. Law & Proc. 376, and cases cited; Township of Dubuque v. City of Dubuque, 7 Iowa, 262; In re Hughes, 1 Bland, 46. Criminal statutes cannot be extended to cases not included within the clear and obvious import of their language. United Stages v. Clayton, Fed. Case, 14,814; Territory, v. Carmody, 45 Pac. Rep. 881; McCann v. Hamilton (Conn.), 19 Atl. Rep. 376; Bannigan v. State, 24 Pac. Rep. 768. The indictment under consideration, as shown by the record, was not in any sense valid and sufficient to give the court jurisdiction. Ex parte Bonner, 151 U. S. 254; Levy v. Wilson, 69 California, 105; People v. Thurston, 5 California, 69; Brunner v. Supreme Court, 92 California, 239; People v. McNamara, 3 .Nevada, 75; McEvoy v. State, 9 Nebraska, 163; Stokes "V. State, 24 Mississippi, 623; Rainey v. State, 10' ■Tex. App. 481; Finley v. State, 61 Alabama, 201; Nordan v. State (Ala.), 39 So. Rep. 406; State v. Feizzell (La.), 38 So. Rep. 444; State v. Mercer, 61 Alabama, 220; United States v. Reynolds, 1 Utah, 226; Burley v. State, 1 Nebraska, 390; Dútell v-. State, 4 Greene (Iowa), 125; Thorp v. People, 3 Utah, 441; State v. Parks, 21 Louisiana, 251; Nichols v. State, 5 N. J. L. 543; Crouch v. State, 63 Alabama, 161; Doyle v. State, 17 Ohio, -222, and cases cited; Lott v. State, 18 Tex. App. 627; People v. Coffman,- 24 California, 294; McMillan v. State, 19 Tex. App. 48; Porter v. State, 23 Mississippi, 578; Thompson & Merriam on Juries, §§ 492 et seq.; United States v. Autz, 16 Fed. Rep. 119; United States v. Gale, 109 U. S. 71. ■ The law in the Territory of Oklahoma relative to the selection, summoning, and organizing of a grand jury is a complete system and applies to the whole Territory, and "it is specific and mandatory. Secs. 2907, 3310, 3313 Wilson’s Ann. Stat. of Oklahoma. The trial court overrode a plain statute and the petitioner did all he was called upon to do in order to protect his rights. Under the organic act of Oklahoma the condition of that portion of the Territory wherein the alleged crime was committed at the date of its commission,fixed the venue and place of trial, instead of the condition of that portion of the Territory at the date of final ’ trial. Post v. United States,, 161 U. S.-583. The petitioner having been compelled, over his objection, to exhibit himself before the jury and walk in the .presence of the jury while stationed outside of the court-room and out of the presence of the júry was compelled to give evidence against himself. 16 Am. & Eng. Ency. of Law, 2d ed., 818; Agnew v. Jobson, 13 Cox C. C. 621; Blackwell v. State (Ga.), 3 Crim. L. Mag. 393; People v. McCoy, 45.How: (N. Y.) 216; State v. Jacobs, 5 Jones (50 N. Car.), 259; Day v. State, 63 Georgia, 667; People v. Mead, 50 Michigan, 228;-Stokes v. State, 5 Baxter (Tenn.);619; 30 Am. & Eng. Ency. of Law, 2ded., Il60; Cooper v. State, 86-Alabama, 610; Davis v. State, 131 Alabama, 10; State v. Garrett,. 71 N. Car. 85; State v.- Graham, 74 N. Car. 626; Walker v. State, 7 Texas App. 245; State v. Nordstrom, 7 Washington, 506; Underhill on Criminal Evidence, 65 et seq.; Rice v. Rice, 47 N. J. Eq. 559; People .v. Walcott, 51 Michigan, 612; Emery v. Case, 117 Massachusetts, 181; Boyd v. United States, 116 U. S. 616, 641; Councilman v. Hitchcock, 142 U. S. 547, 566, 586. The Federal court will interfere in the administration of a territorial court, and even, a state court, in habeas corpus proceedings when said court, in the administration of the law of said Territory or State, disregards and denies a citizen his fundamental and constitutional rights, espécially if said citizen has exhausted the ordinary modes of review by appeal or writ of error. Ex parte Reggel, 114 U. S. 642; Re Converse, .137 U. S. 624; Hodgson v. Vermont, 168 U. S. 262? Brown v. New Jersey, 175 U. S. 172; Re Frederick, 149 U. S. 70.