OCCA

(Syllabus.)

1. Constitutional Law -- Statute Declared Unconstitutional Only Where Clearly Repugnant to Federal or State Constitution. Nothing but a clear violation of the Constitution, federal or state, will justify the judicial department in pronouncing an act of the legislative department unconstitutional and void.

2. Same. The courts cannot annul or pronounce void any act of the Legislature upon any other ground than that of repugnancy to the Constitution of the United States or of the state.

3. Same -- Presumption of Constitutionality. Every legislative act is presumed to be constitutional, and the courts should not declare an act to be unconstitutional unless it is clearly so. If there is doubt, the express will of the Legislature should be sustained.

4. Criminal Law -- Reference to Common Law for Definition of Act Made Offense by Statute. The definition of an act made an offense by statute, but not defined by it, may be ascertained by reference to common law.

5. Statutes -- Reference to Common Law for Construction of Statute Using Words Having Definite and Well-Known Meaning

Page 356

at Common Law. Where a statute uses words which have a definite and well-known meaning at common law, it will be presumed that they are used in the sense in which they were understood at common law, and the statute will be construed accordingly, unless a contrary intention clearly appears.

6. Statutes -- Unambiguous Statute Held to Mean What It Plainly Expresses. Where the language of a statute is unambiguous and its meaning is evident, it must be held to mean what it plainly expresses, and no room is left for the application of rules of construction and interpretation.

7. Criminal Law -- Rule for Determining What Acts May Be Punished Under Penal Statute. A court in determining what acts may be punished under a statute must apply the rule that the terms of a penal statute must be sufficiently explicit to in form those who are subject to it what conduct on their part will render them liable to its penalties.

8. Same -- When Penal Statute Sufficiently Certain Though Using General Terms. A penal statute is sufficiently certain, although it may use general terms, if the offense is so defined as to convey to a person of ordinary intelligence what acts are prohibited.

9. Statutes -- Special Provision Controlling Over Penal Code Making Same Act Criminal. Where statutes not a part of the Penal Code make any specific act criminal, and statutes in the Penal Code make the same act a criminal offense, the offense and punishment therefor shall be governed by the special provisions relating thereto. Section 1773, St. 1931 (21Okla. St. Ann. § 11).

10. Indictment and Information-Charging Different Acts Constituting Offense in Single Count Conjunctively. Where a statute defines an offense, and enumerates disjunctively the different acts or things which constitute the offense, all of such acts may be charged in a single count conjunctively, since, though each by itself may constitute the offense, all together do no more, and constitute but one and the same offense.

11. Constitutional Law -- Basis for Unconstitutionality of Statute. A law that is unconstitutional is so because it is either an assumption of power not legislative in its nature, or because it is inconsistent with some provision of the federal or state Constitution.

12. Same --Criminal Law -- Statute Providing for Punishment of Officers or Employees of Banking Department for Corruption in Office Held not Violative of Constitutional Provisions. The statutory provision that "Any commissioner, assistant commissioner, secretary, examiner, or employee of the Banking De-

Page 357

partment, who shall be guilty of any corruption or misconduct in office, or who shall accept any gratuity, reward or present from any bank or bank officer, or shall take or accept any fee or compensation from any bank or banker during his term of office, shall be deemed guilty of corruption in office," does not violate the "due process of law" clause of the Fifth Amendment and of section 1 of the Fourteenth Amendment, or the requirement of the Sixth Amendment of the Federal Constitution that "The accused shall enjoy the right -- to be informed of the nature and the cause of the accusation," as failing to define the offense with sufficient certainty. Held, further, that said section does not deprive any person of liberty or property without due process of law within the meaning of section 7, article 2, of the State Constitution, and does not violate that clause of section 20, article 2, declaring that the accused "shall be informed of the nature and cause of the accusation."

13. Same -- Statutory Provisions Hold not Void for Uncertainty in Respect to Duties Imposed on State Bank Commissioner. The provisions of chapter 40, arts. 3 and 4, §§ 9146 and 9163 (6 Okla. St. Ann. §§ 18, 22) are not void for uncertainty in respect to the duties therein imposed upon the State Bank Commissioner, and the terms of the statute are sufficiently definite and certain to inform those who are subject to it what acts or conduct on their part will render them liable to its penalties. Held, further, that a violation of said sections constitutes misconduct and corruption in office.

Appeals from District Court, Oklahoma County; Lucius Babcock and Sam Hooker, Judges.

W.J. Barnett was indicted for corruption in office under two indictments, and from judgment sustaining the defendant's motion to quash the indictments, the State appeals. Reversed and remanded, with directions.

Omitting caption and indorsements, one indictment reads as follows:

"Indictment.

"At the regular January 1935 Term of the District Court of the Thirteenth Judicial District of the State of Oklahoma, held in and for Oklahoma County, in the State of Oklahoma, at the City of Oklahoma City, the Grand Jury of said County, twelve good and lawful men, then

Page 358

and there duly and legally empaneled, sworn and charged, according to law, to diligently inquire into, and true presentment make, of all public offenses against said State of Oklahoma committed or triable within said County, upon their said oaths, in the name and by the authority of said State of Oklahoma, do present and find that in said County of Oklahoma, in said State of Oklahoma, on the 11th day of May in the year of our Lord, One Thousand Nine Hundred and Thirty-four, and before the presentment hereof, the defendant, W.J. Barnett, did unlawfully, wilfully, purposely and feloniously commit the crime of corruption in office under the banking laws of the State of Oklahoma, in the manner and form as follows:

"That in the county and state aforesaid, and on the day and year aforesaid, and anterior to said date at all times herein alleged and stated, the said W.J. Barnett was the duly appointed, qualified and acting Bank Commissioner of the State of Oklahoma, charged by law with the faithful execution of the duties of said office, and that among those duties is that of supervision of domestic building and loan associations, including periodical examinations thereof, and that by virtue of his office as aforesaid, the said W.J. Barnett knew and had information that the Home Building and Loan Association of Shawnee, Oklahoma, a corporation organized and doing business under the laws of the State of Oklahoma, with its office and place of business in Shawnee, Oklahoma, had certain fully paid shares of its capital stock represented by certificates outstanding on which no interest had been paid by said association for a long period of time, and the said W.J. Barnett, by virtue of his said office, knew the names and addresses of the various owners of said fully paid shares of the capital stock of said association, and for the purpose of profiting personally from the condition which officially he knew to exist in reference to said stock, he the said W.J. Barnett, did on or about the 30th day of April, 1934, cause one C.R. Wallace, who was then and there president and managing officer of the Farmers State Bank of Bethany, Oklahoma, to pur-

Page 359

chase for him the said W.J. Barnett, from George K. Hunter of Shawnee, Oklahoma, fifty shares of the fully paid capital stock of said Home Building and Loan Association, aforesaid, which said stock was then and there outstanding and the certificates therefor held and owned in the name of Eva F. Hunter, wife of the said George K. Hunter, and that the said C.R. Wallace did purchase said stock with funds of said bank aforesaid, from the said George K. Hunter, after proper endorsement thereof, at three-fourths of its face value, without accrued interest, and that the said W.J. Barnett executed and delivered his personal note numbered 129 in said Farmers State Bank of Bethany aforesaid in payment of the purchase money so advanced for said stock from the funds of said bank, and that thereafter and on or about the 5th day of May, 1934, the said W.J. Barnett, acting in his official capacity as aforesaid, and with the intent, on the part of him, the said W.J. Barnett, to then and there and thereafter benefit and profit thereby in his individual capacity, did authorize and direct the Home Building and Loan Association aforesaid, to sell and convert into cash certain Home Owners Loan Corporation bonds, known as HOLC bonds, and to use the money thus obtained in the withdrawal fund and in the operating fund of said Home Building and Loan Association in equal parts, and that said Home Building and Loan Association did, pursuant to such authority and direction of said Bank Commissioner, convert said bonds, known as HOLC bonds, into cash for the purposes so authorized as aforesaid by the Bank Commissioner as aforesaid, and that thereafter and on said 11th day of May, 1934, the said W.J. Barnett, as Bank Commissioner aforesaid, and with the continuing intent and purpose on the part of him the said W.J. Barnett, to corruptly benefit and profit in his individual capacity through his official acts as Bank Commissioner as aforesaid, did authorize and direct the said Home Building and Loan Association, aforesaid, to make payment of all matured and fully paid shares of its capital stocks to the holders of certificates therefor, where such maturities antedated withdrawal applications, from the monies

Page 360

derived from its prior sale of HOLC bonds, as aforesaid, and that in making payment of said matured certificates as aforesaid, the said association should disregard the equal division of the proceeds from the sale of said HOLC bonds as authorized and directed by said Bank Commissioner on said 5th day of May, 1933, and that said W.J. Barnett, Bank Commissioner, as aforesaid, granted such authority and directed such payment on said 11th day of May, 1935, to the Home Building and Loan Association aforesaid with the continuing intent and purpose of then and there and thereafter receiving a benefit and profit in his individual capacity from his aforesaid acts as Bank Commissioner of the State of Oklahoma, the matured stock theretofore purchased by the said W.J. Barnett from George K. Hunter through C.R. Wallace, as aforesaid, being such stock as was authorized and directed to be paid under the authority granted on said 11th day of May, 1935, as aforesaid, by W.J. Barnett, Bank Commissioner of the State of Oklahoma, and that thereafter said W.J. Barnett in his individual capacity did receive payment from the Home Building and Loan Association of Shawnee, Oklahoma, of the face value of said matured certificates, representing the 50 shares of stock of said association, so acquired and held by him in the manner and form aforesaid, together with accrued interest thereon, to the benefit and profit of the said W.J. Barnett in the sum of approximately $2100.00, and the grand jurors aforesaid, do present and find that the defendant, W.J. Barnett, in the manner and form aforesaid, and by the means aforesaid, did unlawfully, wilfully, purposely and feloniously commit the crime of corruption in office under the banking laws of the State of Oklahoma, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Oklahoma.

"Lewis R. Morris, County Attorney in and for said County."

The other indictment omitting merely formal parts, charged that in Oklahoma county, Okla., on December

Page 361

26, 1933, "the said W.J. Barnett did unlawfully, wilfully, purposely and feloniously commit the crime of corruption in office in manner and form as follows, to wit:

"That in the county and state aforesaid and on the day and year aforesaid, and anterior to said date at all times herein alleged and stated, the said W.J. Barnett was the duly appointed, qualified and acting Bank Commissioner of the State of Oklahoma, charged by law with the faithful execution of the duties of said office, and that pursuant to the authority in him vested by law, the said W.J. Barnett did, on the 26th day of January, 1933, close the Farmers State Bank of Bethany, a bank organized and existing and doing business under the banking laws of the State of Oklahoma, with its office and place of business in the city of Bethany, in the county and state aforesaid, and that thereafter, and on the 4ih day of August, 1933, said defendant as such Bank Commissioner, authorized and permitted the reopening of said bank for business after requiring the majority stockholders thereof to retire approximately $14,000.00 of the bank's assets by converting the same into cash, which was done, and that thereafter, in November 1933, said defendant as such Bank Commissioner, advised and directed said majority stockholders of said bank to apply for membership in the Federal Depositors Insurance Corporation, which was done, and that thereafter, on or about the 12th day of December, 1933, the defendant, W.J. Barnett, well knowing that the application of said Farmers State Bank of Bethany for membership in the Federal Depositors Insurance Corporation had been approved on the 7th day of December, 1933, without restrictions and without further requirements as to the assets of said bank, did falsely, fraudulently and corruptly represent to the majority stockholders of said bank that other and further assets of said bank in the approximate amount of $8,700 would have to be withdrawn and replaced with cash before the Federal Depositors Insurance Corporation would approve the application of said bank for membership, and ordered and directed that such further withdrawal of assets and

Page 362

the replacement thereof with cash in said bank must be done on or before the 26th day of December, 1933, or that he, the said W.J. Barnett, as Bank Commissioner of the State of Oklahoma, would close said bank and place the same in the hands of a liquidating agent, but that if said majority stockholders would turn their stock in said bank over to him, the said W.J. Barnett, on or before said 26th day of December, 1933, he, the said W.J. Barnett would find persons who would take over the stock and replace said $8,700.00 of assets with cash in the bank, and that said majority stockholders, relying upon and believing said statements and representations of the said W.J. Barnett, so made by him to them in his official capacity as Bank Commissioner, did on said 26th day of December, 1933, endorse in blank and deliver to the said W.J. Barnett eighty-three shares of the capital stock of said bank being all of the stock of said bank owned by said majority stockholders, and that said false statements and representations so made to said majority stockholders by the said W.J. Barnett in his official capacity as aforesaid concerning the purported requirements of the Federal Depositors Insurance Corporation were made with the corrupt and fraudulent intent and purpose on the part of him, the said W.J. Barnett, to obtain control of said Farmers State Bank of Bethany in his individual capacity and for his personal benefit and profit, and that thereafter in furtherance of said corrupt and fraudulent intent and purpose he, the said W.J. Barnett, Bank Commissioner as aforesaid, caused said Majority stock so delivered to him as aforesaid to be cancelled, and caused new stock in a like amount to be issued as follows, to wit: 25 shares in the name of N.S. Barnett, a brother of the defendant; 25 shares in the name of C.R. Wallace, an employee of the Bank Commissioner; 25 shares in the name of F.S. Reed, a personal friend of the said Bank Commissioner; and 8 shares in the name of A.N. Turner, who died in the year 1930, and that said new stockholders paid no money into said bank and retired none of the $8,700.00 of assets theretofore required by said defendant to be replaced with cash, and the grand jurors aforesaid

Page 363

upon their oaths aforesaid do present and find that the said defendant, W.J. Barnett, in the manner and form aforesaid and by the means aforesaid did commit the crime of corruption in office under the banking laws of the State of Oklahoma, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Oklahoma.

"Lewis R. Morris, County Attorney, in and for said County."

Both indictments were returned and presented in open court on April 23, 1935.

On May 1, 1935, the defendant filed in each cause identical motions to quash the same, omitting caption and title as follows:

"Motion to quash and expunge instrument entitled 'Indictment'

"From the record and to exonerate defendant's bail.

"Comes now the defendant, W.J. Barnett, appearing specially and denying jurisdiction of this Honorable Court for every purpose save to entertain this pleading and grant the prayer hereof and for cause he says:

"That heretofore and on the 23rd day of April, 1935, a grand jury returned or presented to this Honorable court a certain written instrument entitled 'indictment'.

"That said instrument in writing so returned or presented is not 'an accusation in writing, presented by a grand jury to a competent court charging a person with a public offense' in that it fails wholly to charge defendant with any crime or public offense defined, denounced by or known to the laws of the State of Oklahoma.

"That therefore, said instrument in writing was not and is not an 'indictment' and this Honorable Court acquired no jurisdiction over the person of this defendant by reason of the return or presentment, thereof.

Page 364

"That, thereupon, immediately, this Honorable Court did order said instrument in writing filed and did direct the Court clerk to issue thereupon his warrant for the arrest of this defendant.

"That thereafter and on the 30th day of April 1935, the Sheriff of Oklahoma County, did execute said warrant and take this defendant into custody.

"That thereafter and in order to save himself from incarceration in the common jail this defendant was compelled to furnish bail in the sum of Two Thousand ($2 000.00) Dollars and is now in the custody of said bail.

"That for this Honorable Court to, because of the return or presentment of said written instrument, assume jurisdiction, power and authority over the person of this defendant by compelling him to remain in said custody or by making an order in the premises interfering with his freedom of movement will and does amount to denying, this defendant the equal protection of the laws as guaranteed by the Constitution of the United States and to depriving him of his liberty without due process of law, in violation of the Constitutions of the United States and of the State of Oklahoma.

"That said instrument in writing aforesaid, now appears of record upon the books of this Honorable Court improperly, wrongfully and unlawfully, defaming, degrading and disgracing this defendant.

"That, therefore, this Honorable Court should now order said instrument in writing expunged from said records, exonerate and discharge the bail of this defendant and fully restore him to his liberty.

"Wherefore premises considered, defendant, prays:

"That said instrument in writing and all reference thereto be declared nullities and expunged from the records and dockets, of this Honorable Court; that defendant's bail be exonerated and discharged.

Page 365

"That defendant be completely restored to his liberty.

"Sid White

"A. L. Beckett,

"Attorneys for Defendant."

On May 20, 1935, said cause came on for hearing and argument of counsel on said motions to quash before Lucius Babcock and Sam Hooker, trial judges. On May 22, 1935, the following order was filed in each cause, omitting caption, as follows:

"Order.

"Now on this the 20th day of May, 1935, coming on for hearing pursuant to assignment and setting defendant's motion to quash and set aside the indictment herein came the plaintiff by its duly elected, qualified and acting County Attorney, Lewis R. Morris, came the defendant in his own proper person and by his attorneys, Sid White and A.L. Beckett, and the court having heard the arguments of counsel and being well and fully advised in the premises doth find:

"That sections 1778, 9146 and 9163, 0.S. 1931 (21 Okla. St. Ann. § 94, 6 Okla. St. Ann. §§ 18, 22], are too vague, indefinite, ambiguous and uncertain under the limitations of the Constitution of the State of Oklahoma and of the United States of America to create the offense of corruption in office, and that the same are wholly insufficient to support the indictment returned.

"That section 7 of article 2 of the Constitution of Oklahoma is as follows:

"'No person shall be deprived of life, liberty, or property, without due process of law.'

"That article 5 of the Amendments to the Constitution of the United States is as follows:

" 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or in-

Page 366

dictment 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; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.'

"That article 6 of the Amendments to the Constitution of the United States is as follows:

'In all criminal prosecutions, the accused shall enjoy the right to be informed of the nature and cause of the accusation.'

"That section 1 of article 14 of the Amendments to the Constitution of the United States is as follows:

"'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jursdiction the equal protection of the laws.'

"That section 1 of article 1 of the Constitution of the State of Oklahoma is as follows:

"'The State of Oklahoma is an inseparable part of the Federal Union, and the Constitution of the United States is the supreme law of the land.'

"That the Constitution of the United States is the Supreme law of the land to be read, considered and respected as such by every court. That tested and measured by said Constitutional provisions as read and construed by the courts of the land said section 9163, 0.S. 1931 [6 Okla. St. Ann. § 22] wholly fails to create the offense of 'Corruption in Office.'

Page 367

"That no statute of the State of Oklahoma makes unlawful or criminal any act in this indictment alleged against or charged to this defendant.

"That, therefore, said indictment charges this defendant with no crime or public offense known to the laws of the State of Oklahoma.

"That therefore, said indictment should be quashed and set aside, and the defendant's ball exonerated.

"It is therefore, by the court considered, ordered and adjudged:

"1. That the indictment returned and filed herein be and the same is hereby quashed and set aside for the reasons set forth in the findings of the court herein, to which action and ruling of the court the State of Oklahoma, by the county attorney excepts, and exception is allowed, thereupon the county attorney gives notice in open court of his intention to appeal to the Criminal Court of Appeals of the State of Oklahoma, and requests that the clerk be directed to note on the minutes said notice of appeal, which was accordingly done.

"2. It is further ordered and adjudged by the court that the sureties on the bail bond of the defendant, W.J. Barnett, be, and they are hereby exonerated and discharged from further liability by reason of their undertaking herein, but that the said defendant, W.J. Barnett, be not discharged pending the appeal and determination of this cause by the Criminal Court of Appeals of the State of Oklahoma, but that he be enlarged and placed at liberty upon his own recognizance during the pendency of said appeal.

"It is the further order and judgment of the court that in the event the appeal herein allowed is not perfected within the time fixed by law, and the order of this court, or if this order shall be affirmed, that then and in that event, the defendant, W.J. Barnett shall stand discharged under the indictment herein.

Page 368

"Witness the undersigned Judge of the District Court within and for Oklahoma County, Oklahoma.

"Lucius Babcock, Judge.

"Witness the undersigned, one of the Judges of the District Court of Oklahoma County, who fully concurs in the foregoing decision and judgment.

"Sam Hooker Judge.

Mac Q. Williamson, Atty. Gen., Lewis R. Morris, Co. Atty., and Walter Marlin, Asst. Co. Atty., for the State.

J.D. Lydick, Sid White, A.L. Beckett, and Curtis P. Harris, for defendant in error.

DOYLE, J. (after stating the facts as above). In these cases the state appeals from judgments in favor of the defendant entered upon orders sustaining motions identical in each case, to quash and set aside the indictments. The court rendering judgment in each case sustaining the motions ordered that the defendant, W.J. Barnett, be not discharged pending the appeals and the determination of the same by this court.

Procedure Criminal, section 3191 (22 Okla. St. Ann. § 1053), provides:

"Appeals to the Criminal Court of Appeals may be taken by the state in the following cases and no other:

"First. Upon judgment for the defendant on quashing or setting aside an indictment or information.

"Second. Upon an order of the court arresting the judgment.

"Third. Upon a question reserved by the state."

The grounds upon which an indictment may be set aside upon the motion of a defendant are clearly defined in Procedure Criminal. Section 2937 (22 Okla. St. Ann. § 493).

Page 369

They are as follows:

"The indictment or information must be set aside by the court in which the defendant is arraigned, and upon his motion in any of the following cases:

"First. When it is not found, indorsed, presented or filed, as prescribed by the stautes or when the grand jury is not drawn and impaneled as provided by law, and that fact is known to the defendant at or before the time the jury is sworn to try the cause: Provided, that the defendant shall be conclusively presumed to know matters of record.

"Second, When the names of the witnesses examined before the grand jury are not made to appear on some part of the indictment, as provided in this chapter.

"Third. When a person is permitted to be present during the session of a grand jury while the vote on the finding of the indictment is being taken, or when it is shown that after the grand jury was first impaneled any member or members thereof, were discharged and their places filled by persons not regularly drawn from the jury list, as provided by law, and that they were admitted into the grand jury or took part in their deliberations, or that the grand jury was not impaneled anew as a whole body in open court."

Before a defendant in a criminal action is entitled to be heard on a motion to set aside an indictment, he must bring himself clearly within the provisions of the Code of Criminal Procedure. Section 2937, Stat. 1931; Daggs v. State, 12 Okla. Cr. 289, 155 Pac. 489 (22 Okla. St. Ann. § 493).

The motion to quash in each case avers:

Page 370

ant with any crime or public offense defined, denounced by or known to the laws of the State of Oklahoma."

Obviously, the motion in each case did not conform to the requirements of the statute above quoted.

Under our Procedure Criminal, the motion to quash and set aside an indictment takes the place of the plea in abatement at common law, a plea the subject-matter of which may be any objection which could not be properly interposed by a plea in bar.

Any plea setting up absence of jurisdiction of the court is a plea to the jurisdiction.

The purpose of a plea, no matter what nomenclature is used, is to make an issue. In the cases at bar the motions in substance were to dismiss because the statute being unconstitutional, the court had no jurisdiction to consider the same. However, we prefer to lay aside all technical objections to the pleas interposed and meet the arguments which have been presented to sustain the judgments.

A law that is unconstitutional is so because it is either an assumption of power not legislative in its nature, or because it is inconsistent with some provision of the Federal or State Constitution.

Section 1 of article 14 of the Constitution provides:

"General laws shall be enacted by the legislature providing for the creation of a Banking Department, to be under the control of a Bank Commissioner, who shall be appointed by the Governor for a term of four years, by and with the consent of the Senate, with sufficient power and authority to regulate and control all State Banks, Loan, Trust and Guaranty Companies, under laws which shall provide for the protection of depositors and individual stockholders."

Page 371

The laws vitalizing this constitutional provision are found in chapter 40, articles 3 and 4, Okla. St. 1931.

The indictments are based upon provisions contained in said articles.

Section 9146 (6 Okla. St. Ann. § 18), is in part as follows:

"Any commissioner, assistant commissioner, secretary, examiner, or employee of the Banking Department, who shall be guilty of any corruption or misconduct in office, or who shall accept any gratuity, reward or present from any bank or bank officer, or shall take or accept any fee or compensation from any bank or banker during his term of office, shall be deemed guilty of corruption in office, and, upon conviction, shall be punished by imprisonment in the State Penitentiary for a term of not less than one, nor more than ten years; and any commissioner, secretary, examiner or employee of the Banking Department, who shall neglect to perform any duty, or who shall prove to be incompetent, negligent, or insubordinate, may be summarily removed by the State Banking Board."

And section 9163 (6 Okla. St. Ann. § 22) provides:

"Any Bank Commissioner or Assistant Bank Commissioner who shall neglect to perform any duty herein provided for, or who shall make any false statement concerning any bank, or who shall be guilty of misconduct or corruption in office shall, upon conviction thereof, be deemed guilty of a felony and punished in the manner herein provided, and in addition thereto shall be removed from office."

Penal Code, § 1778 (21 Okla. St Ann. § 94), defines the word "corruptly" as follows:

"The term 'corruptly' when so employed, imports a wrongful design to acquire some pecuniary or other advantage to the person guilty of the act or omission referred to."

Page 372

The judgments of the court below present a statement of the reasons which induced that court to sustain the motion to quash and set aside the indictments as follows:

"That sections 1778, 9146, and 9163, 0.S. 1931 [21 Okla. St. Ann. § 94, 6 Okla. St. Ann. §§ 18, 22], are too vague, indefinite, ambiguous and uncertain under the limitations of the Constitution of the State of Oklahoma and of the United States of America to create the offense of corruption in office, and that the same are wholly insufficient to support the indictment returned."

It will be seen from the foregoing that the question to be determined is whether the statutes above quoted, defining what acts are prohibited and made punishable when committed by a bank commissioner or other officer of the banking department, acting as such; also providing that any Bank Commissioner or assistant "who shall be guilty of any misconduct or corruption in office shall" be deemed guilty of a felony, are void for uncertainty.

It is a well-settled rule that a penal statute must be construed with such strictness as to carefully guard the rights of the accused, and at the same time preserve the obvious intention of the Legislature; what the legislative intention was, however, can be derived only from the words used in the statute. State v. Young, 20 Okla. Cr. 383, 203 Pac. 484.

In Kepner v. U.S., 195 U.S. 100, 24 S. Ct. 797, 802, 9 L. Ed, 114, 1 Ann. Cas. 655, it is said:

"It is a well-settled rule of construction that language used in a statute which has a settled and well-known meaning, sanctioned by judicial decision, is presumed to be used in that sense by the legislative body."

Another well-settled rule of construction is that where words are employed in a statute which had at the time

Page 373

a well-known meaning at common law or in the law of this country, they are presumed to have been used in that sense unless the context compels to the contrary. Standard Oil Co. v U.S., 221 U.S. 1, 31 S. Ct. 502, 55 L. Ed. 619, 34 L. R. A. (N.S.) 834, Ann. Cas. 1912D, 734.

Where the purpose of a statute is in general the same as that of the common law , it will be presumed that the Legislature intended to re-enact in statute form the common law.

In Shires v. State, 2 Okla. Cr. 89, 99 Pac. 1100, we said:

"The definition of an act made an offense by statute, but not defined by it, may be ascertained by reference to common law."

In State v. Lawrence, 9 Okla. Cr. 16, 130 Pac. 508, it is said:

"When the Legislature creates without defining an offense which was a crime under the common law, the definition of the crime given by the common law will be treated by the courts as though it were a part of the statute itself, and will render certain and definite that which might otherwise be uncertain and indefinite."

16 Corpus Juris p. 67, is as follows:

"The Legislature in creating an offense may define it by a particular description of the act or acts constituting it, or it may define it as any act which produces, or is reasonably calculated to produce, a certain defined or described result; or it may group together various means by which the end may be accomplished and make any one of such means offense when done to attain the object denounced by the statute. In the absence of provision to the contrary, a statute may punish an offense by giving it a name known to the common law, without further defining it and the common-law definition will be applied.

Page 374

In creating an offense which was not a crime at common law, a statute must of course be sufficiently certain to show what the Legislature intended to prohibit and punish, otherwise it will be void, for uncertainty. Reasonable certainty, in view of the conditions, is all that is required, and liberal effect is always to be given to the legislative intent when possible; but where the Legislature declares an offense in words of no determinate signification, or its language is so general and indefinite that it may embrace not only acts commonly recognized as reprehensible but also others which it is unreasonable to presume were intended to be made criminal, the statute will be declared void for uncertainty. The certainty required may be accomplished, as we have seen, by the use of words or terms of settled meaning, or words which indicate offenses well known to and defined by the common law. It is not necessary to use technical terms, and the Legislature may designate the offense by using words in common and daily use; and a penal statute is sufficiently certain, although it may use general terms, if the offense is so defined as to convey to a person of ordinary intelligence an adequate description of the evil intended to be prohibited." Citing Czarra v. Board of Medical Sup'rs of District of Columbia, 25 App. D.C. 443; State v. Keasley, 50 La. Ann. 761, 23 So. 900; State v. Lawrence, 9 Okla. Cr. 16, 130 Pac. 508; Stewart v. State, 4 Okla. Cr. 564, 109 Pac. 243 32 L. R. A. (N.S.), 505; Crawford v. U.S., 30 App. D.C. 1; U.S. v. U.S. Brewers' Ass'n (D.C.) 239 F. 163; State v. QuinIan, 86 N.J. Law, 120, 91 A. 111; People v. Goldberger (Sp. Sess.) 163 N. Y. S. 663 (kosher).

In 14A. Corpus Juris 1430, "Corruption" is defined as:

"Something against law; something forbidden by law, * * * The term is a very broad one and, as usually spoken or written, means moral turpitude, or exactly the opposite of honesty, involving the intentional disregard of law from improper motives. It includes bribery, but is more comprehensive, because an act may be corruptly done, although the advantage to be derived from it is not offered

Page 375

by another. As used in the phrase 'corruption in office', however, the term would undoubtedly cover the act of an officer in accepting a bribe." Citing State v. Douglass, 239 Mo. 674, 144 S.W. 407.

Corruption in office is defined in Black's Law Dictionary as:

"The act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others."

14A Corpus Juris, 1431, is as follows:

"The phrase is a comprehensive one intended to cover every class of crime which amounts to a felony when intentionally committed by a ministerial or judicial officer; and will include bribery, embezzlement, receiving benefits from the deposit of public funds, corruptly allowing and auditing claims, the unlawful disbursement of public moneys, failure to pay over excessive fees collected," etc.

Counsel for defendant in error in their brief say:

"Corruption in office has no 'well settled common-law meaning.' In fact 'corruption in office' was not a crime at common law. Surely this statement will not be denied, so we submit no further argument or authority in support thereof."

As refuting this statement, we quote 1 Russel on Crimes, p. 416:

"Where an officer neglects a duty incumbent on him, either by common law or by statute, he is indictable for his offense; and this whether he be an officer of the common law, or appointed by Act of Parliament: and a person holding a public office under the King's letters patent, or derivatively from such authority, has been considered as amendable to the law for every part of his conduct, and obnoxious to punishment for not faithfully discharging it. And it is laid down generally that any public officer is indictable for misbehaviors in his office."

Page 376

And again, in the same work, page 432, it is said:

"Public officers may also be indicted for frauds committed in their official capacities."

Wharton says (Wharton's Crim. Law, § 1889):

"It is a misdemeanor at common law for a public officer in the exercise or under color of exercising the duties of his office, to abuse any discretionary power with which he is invested by law, from an improper motive. In such cases the existence of the motive may be inferred either from the nature of the act or from the circumstances of the whole case."

Bishop says (Bishop St. Crimes, p. 146):

"Since the common law punishes every breach of public duty, sufficient in magnitude for its notice, if a statute newly creates a duty of this sort, yet prescribes no punishment for its violation, the violator, while not indictable strictly under the statute, is so at the common law."

And again, in section 363 of the same work, it is said:

"Still, there is constant occasion to refer to the common law to ascertain the meaning of the statute in respect of the act; for we have seen that, if a statute employs a word or phrase which has already been used in the common law or in another statute, it is to be understood in the meaning previously determined. Thus, there are no common-law crimes against the United States; yet the acts of Congress, instead of minutely defining particular crimes, often make it, penal, for example, to commit robbery or larceny or arson, and so on, -- employing words of a well-known common-law meaning. In such a case the court looks to the common law to ascertain the nature and limits of the offense." Hughes v. Territory, 8 Okla. 28, 56 P. 708.

In the case of State v. Young, 20 Okla. Cr. 397, 203 Pac. 489, 490, this court, construing section 12, article 7,

Page 377

of the Constitution, which among other things provides that the county court shall not have jurisdiction "in any action against officers for misconduct in office," said:

"The phrase 'misconduct in office' includes any willful malfeasance, misfeasance, or nonfeasance in office. Bishop substantially defines 'misconduct in office' in its penal sense as any act or omission in breach of a duty of public concern by one who has accepted public office, provided his act is willful and corrupt, and is not judicial. Bishop's New Crim. Law, pars. 459, 460."

"Malfeasance is doing that which officer has no authority to do, and is positively wrong or unlawful."

"Misfeasance by an officer is doing in a wrongful manner that which law authorizes or requires him to do."

"Nonfeasance by an officer is the substantial failure to perform duty." 2 Words and Phrases, Fourth Series, pages 617, 696, 801.

In State v. Slover, 113 Mo. 202, 20 S.W. 788, 789, it is, said:

"The phrase 'misconduct in office' is broad enough to embrace any willful malfeasance, misfeasance, or nonfeasance in office."

In the case of Coffey v. Superior Court, 147 Cal. 525, 82 Pac. 759 it is said:

"The accusation sufficiently charged willful misconduct in office as it is contemplated by the provisions of section 758 of the Penal Code, that an accusation against any municipal officer for 'willful or corrupt misconduct in office' may be presented by the grand jury." And see State v. Flynn, 119 Mo. App. 712, 94 S.W. 543; Grebe v. State, 112 Neb. 715, 201 N.W. 143.

It is a cardinal rule of statutory construction that significance and effect shall, if possible, be accorded to every word.

Page 378

Furthermore, a single sentence should not be set apart and considered without relation to its context. The expression or phrase quoted is not an exception to the rule and should be considered in connection with the sections in which it is used.

In Gunning v. People, 86 Ill. App. 174, 12 Am. Cr. Rep. 563, it is said:

"When a word, which may in its application have different meanings, is used in a statute, the sense in which such word is used by the legislature should control in construing, and applying such statute. Where such word appears several times in the same chapter of the statute, and the sense in which it is used clearly appears in some sections, that may materially aid in determining the sense in which it is used in other sections of the same chapter."

In Hays v. State, 22 Okla. Cr. 99, 210 Pac. 728, this court held:

"Where statutes not a part of the Penal Code make any specific act criminal, and statutes in the Penal Code make the same act a criminal offense, the offense and punishment thereof shall be governed by the special provisions relating thereto. Section 2092, Rev. Laws 1910 [see. 1773, Stats. 1931 (21 Okla. St. Ann. § 11)]."

Further held:

"Under proper averments the definition of embezzlement as found in section 3213, Rev, Laws 1910 [section 7466, Stat. 1931 (28 Okla. St, Ann. § 3)], may be considered in aid of defining embezzlement under the provisions of section 7437, Rev. Laws 1910 [section 7761, Stats. 1931 (19 Okla. St. Ann. § 641)], both of which statutes are specific in their nature, and not a part of the general Criminal Code."

In the case of State v. Bunch, 23 Okla. Cr. 388, 214 Pac. 1093, this court held:

Page 379

"Usually where a statute makes it an offense to do this, that, or the other of several things, disjunctively, the whole or any part thereof may be charged, conjunctively, and proof of either or all will support a conviction."

In the me of Davis v. State, 40 Okla. Cr. 231, 267 Pac. 674, 675, the defendant was convicted of violating the state banking laws. This court held:

"Where a statute defines an offense, and enumerates disjunctively the different acts or things which constitute the offense all of such acts may be charged in a single count conjunctively, since, though each by itself may constitute the offense, all together do no more, and constitute but one and the same offense."

In the cases at bar each indictment in charging the offense alleged acts, declared disjunctively 'by the statute, to constitute the offense conjunctively as constituting the crime. That this was correct pleading has been held repeatedly as in the foregoing cases.

The rule of strict construction of a penal statute is not violated by giving its words a reasonable meaning according to the sense in which they were intended, disregarding captious objections.

The charge contained in each of the indictments before us is within the statutory prohibition set forth in section 9146 (6 Okla. St. Ann. § 18), supra, as follows:

Page 380

This language is explicit; its meaning unmistakable. No, ambiguity patent or latent appears to us in the text of the statute. The same may be said of section 9163 (6 Okla. St. Ann. § 22).

And we think the question in this case is answered in the other explicit provisions of the act.

The Constitution of the United States is the supreme law of the land, and next to it, and higher in authority than legislative statutes, is the Constitution of the state. Hence, when a statute comes in conflict with either, it must give away and the courts must decide whether such conflict exists or not.

This court is bound to sustain the fundamental law the Constitution of the state according to its true intent and meaning. That is the great charter of our rights to which the humblest may at all times appeal and to which the highest must at all times submit. Ex parte Owens, 37 Okla. Cr. 118, 258 Pac. 758.

In Patterson v. State, 7 Okla. Cr. 497124124 124 Pac. 942, we said:

"The courts cannot annul or pronounce void any act of the Legislature upon any other ground than that of repugnancy to the Constitution of the United States or of the state."

In State v. Coyle, 7 Okla. Cr. 50, 122 Pac. 243, we said:

"Every legislative act is presumed to be constitutional, and the courts should not declare an act to be unconstitutional unless it is clearly so. If there is doubt, the expressed will of the Legislature should be sustained."

Says Judge Cooley:

Page 381

"The question whether a law be void for its repugnancy to the Constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligation which that station imposes; but it is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts to be considered as void." Cooley's Const. Lim. c. VII.

In Powell v. Commonwealth, 114 Pa. 265, 7 A. 913, 60 Am. Rep. 350, 7 Am. Cr. Rep. 32, it is said:

"But, as is shown by Chief Justice Black in Sharpless v. Mayor, 9 Harris [21 Pa.] 147 [59 Am. Dec. 759], a statute will be declared void by the court 'only when it violates the Constitution clearly, palpably, plainly and in such manner as to leave no doubt or hesitation on our minds.' "

The Banking Board Act has been in effect for 25 years and has been upheld in all the decisions of both appellate courts of this state wherein it was construed.

In the case of Bynum v. Strain, Bank Commissioner, 95 Okla. 45, 218 Pac. 883, the Supreme Court construed section 1, article 14, of the Constitution, and reviewed the legislative acts effectuating the constitutional mandate, including section 9146, supra.

In the case of State v. Dennis, 28 Okla. Cr. 312, 230 Pac. 935, the defendant, Dennis, Bank Commissioner, was informed against for corruption in office, the information contained four counts, a demurrer was interposed to the information on the ground that none of the counts state facts sufficient to constitute a public offense. The demurrer was sustained and the state appealed. The prosecution was based upon section 9163, supra. This court held that

Page 382

three of the four counts charging corruption in office charged an offense under this section.

Counsel for defendant in error say:

"The defendant submits his argument in support of the correctness of the lower court's decision under this proposition of law.

"The defendant says that the expression 'corruption in office' contained in sections 9146 and 9163, 0.S. 1931 [6 Okla. St. Ann. §§ 18, 22], is not defined by statute, has no 'technical meaning' nor 'well settled common law meaning:' that it is 'so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application;' that it is 'not sufficiently explicit to inform those who are subject to it' as to its meaning; that it is 'too indefinite and uncertain to support an information or indictment;' that therefore the statutes fail to meet the requirement of the Federal Constitution or of the State Constitution and are void and the indictment based solely thereon is a nullity."

Quoting articles 5 and 6 and section 1 of article 14, Amendments to the Constitution of the United States, and section 7, article 2, of the State Constitution. Citing Connally v. General Construction Co., 269 U.S. 385, 46 S. Ct. 126 127, 70 L. Ed. 322, holding that:

"A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law."

And that:

"A statute requiring a contractor, under penalty, to pay his employees 'not less than the current rate of per them wages in the locality where the work is performed,' is so uncertain as to deprive contractors of their property without due process of law."

Page 383

Other cases upon which the defendant in error seems to rely are: U.S. v. L. Cohen Grocery, Co., 255 U.S. 81, 41 S. Ct. 298, 65 L. Ed. 516, 14 A. L. R. 1045; U.S. v. Reese, 92 U.S. 214, 23 L. Ed. 563; U.S. v. Capital Traction Co., 34 App. D.C. 592, 19 Ann. Cas. 68.

In the foregoing cases, certain words and phrases as used in a penal statute are held to be so vague, indefinite, and uncertain as to be in violation of the Fifth and Sixth Amendments to the Constitution, securing to the accused the right to be "informed of the nature and cause of the accusation."

An examination of these cases leads to the conclusion that they have no application to the statute under consideration.

In the case of Groskins v. State, 52 Okla. Cr. 197, 4 P.2d 117, cited by counsel for the defendant, this court held:

"A penal statute is sufficiently certain, although it may use general terms, if the offense is so defined as to convey to a person of ordinary intelligence an adequate description of the evil intended to be prohibited."

It is alleged in the indictment in each case that the acts set forth therein were unlawful, willful, corrupt, and felonious. It is needless to say more.

It follows from what has been said that the statute in question does not violate the due process clause of the Fifth Amendment and the requirement of the Sixth Amendment, that "the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation," and does not deprive any person of liberty or property without due process of law within the meaning of that clause of the Fourteenth Amendment to the Constitution

Page 384

of the United States. And again, the statute does not violate section 7 of article 2 of the State Constitution, declaring that "no person shall be deprived of life, liberty, or property, without due process of law," and does not violate that clause of section 20 article 2, declaring that the accused "shall be informed of the nature and cause of the accusation."

This court is of opinion that the statute, including the sections in question, is constitutional and that all objections which have been urged thereto are without merit. Hence, the motions to quash and set aside the indictments in the two cases before the court below should be overruled.

For the reasons hereinbefore stated, said judgments of the district court of Oklahoma county, setting aside and quashing the indictments, are reversed and said cases are remanded to that court for further proceedings not inconsistent with the views expressed in this opinion.

EDWARDS, P.J., and DAVENPORT, J., concur.


Court:
Case Number: