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Statutes - District Court Held Without Jurisdiction Where Charge of Offense of Operating Liquor Distillery Was Based on Unconstitutional Statute. The trial court was without jurisdiction of the offense charged against the defendant, and the demurrer should have been sustained and the prosecution dismissed.

Appeal from District Court, Woods County; A.G. Sutton, Judge.

Ezra Brown was convicted of using and operating a distillery in the manufacture of intoxicating liquor, and he appeals. Judgment reversed, and cause remanded, with directions to dismiss the prosecution.

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E.W. Snoddy, for plaintiff in error.

J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

DAVENPORT, J. The plaintiff in error, hereinafter referred to as the defendant, was tried in the district court of Woods county upon an information charging the defendant with the crime of willfully, intentionally, unlawfully, and feloniously using and operating a distillery in the manufacture of intoxicating liquor, to wit, whisky. To this information the defendant demurred. One of the grounds of the demurrer is that the court did not have jurisdiction of the offense charged. This demurrer was overruled, and defendant duly excepted.

The overruling of the demurrer by the court is assigned as one of the errors by the defendant, and is the only question argued. The prosecution in this case is based on chapter 1, Session Laws of Oklahoma 1923, which chapter was by the court, in Ex parte Smith, 24 Okla. Cr. 415, 218 P. 708, held to be unconstitutional and void, on the ground that it was in conflict with, and exceeded the limitations contained in, the original ordinance prohibiting the manufacture and sale of intoxicating liquor. The Attorney General admits that the demurrer of the defendant was well taken, and that the court was without jurisdiction of the offense charged. Ex parte Smith, supra, has been approved by this court in the following cases: Ex parte Safarik, 25 Okla. Cr. 50, 218 P. 1112; Ex parte Scott, 25 Okla. Cr. 28, 219 P. 158; Ex parte Wade, 25 Okla. Cr. 29, 219 P. 159; Moore v. State, 26 Okla. Cr. 395, 224 P. 372; Karns v. State, 26 Okla. Cr. 393, 224 P. 373.

The trial court was without jurisdiction, and it follows that the judgment and sentence in this case is null

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and void. The judgment is reversed, and the cause remanded to the district court of Woods county, with directions to dismiss the prosecution.

EDWARDS, P.J., and CHAPPELL, J., concur.