EX PARTE OVERTURFF

EX PARTE OVERTURFF
1953 OK CR 3
252 P.2d 505
96 Okl.Cr. 264
Case Number: A-11861
Decided: 01/07/1953
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Intoxicating Liquors - Second and Subsequent Convictions for Violation of Prohibition Laws - Statute General Act. Statute providing that the second and all subsequent convictions for violation of prohibition laws, penalty shall be fine of not less than $50 nor more than $2,000, and by imprisonment of not less than 30 days in county jail nor more than 5 years in state penitentiary is a general act which applies to whole subject matter of habitual violators of liquor prohibition act and may be applied in cases predicated on convictions involving manufacture, sale, transportation, or possession of intoxicating liquors. Tit. 37 O.S. 1951 § 12 [37-12].

2. Statutes - Person Cannot Be Convicted of Crime Within Both Letter and Spirit of Penal Statute. Penal statutes cannot be enlarged by implication or extended by inference, and conviction of crime is unwarranted unless the act is within both the letter and the spirit of the penal statute.

3. Same - Ascertainment of Intention of Legislature in Enactment of Statute. To ascertain the intention of the Legislature in the enactment of a statute, the court may look to each part of the statute, to other statutes upon the same subject, to the evils and mischiefs to be remedied, and to the natural or absurd consequences of any particular interpretation.

4. Same - Constitutional Law - Public Drunkenness Statute - Judicial Interpretation of Statutory Provisions Involved. Where, as here, an administrative agency of the State, by and with the advice of the legal counsel by the State provided, over a long period of time in administering the tax laws, has determined that Tit. 37 O.S. 1951 § 12 [37-12], the second offense statute, has no application to Tit. 37 O.S. 1951 § 8 [37-8], the public drunkenness statute, and succeeding legislatures have not disapproved of the practice by clarification legislation, but apparently have acquiesced therein, such facts are determined as just media for judicial interpretation of the statutory provisions involved.

5. Same - Every Act of Legislature Shall Embrace but One Subject Clearly Expressed in Its Title. "Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended, extended, or conferred shall be reenacted and published at length; Provided, that if any subject be embraced in any act contrary to the provisions of this section, such act shall be void only as to so much of the law as may not be expressed in the title thereof." Art. V, § 57, Const. of Okla.

6. Same - Tracing of History of Statutes Fails to Disclose Mention of "Public Drunkenness" in Titles. The statutory provisions here involved are Section 8,

Page 265

the public drunkenness statute, and Section 12, the second offense statute of the prohibitory liquor laws, and Section 15 defining "`this Act'", all of Title 37, O.S. 1951. A tracing of the history of each of these sections discloses a total failure to mention "public drunkenness" in the titles to the various acts involved, and in which they appear, and in the title to the prohibition ordinance of the Oklahoma Constitution, Art. I, § 7, and if it was intended to make public drunkenness an offense under such law it would constitute a violation of Section 57, Art. V. of the Constitution of Oklahoma, providing in part "Every Act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title."

7. Same - Second Offense Statute not Applicable to Public Drunkenness Statute. The 1911 Legislature in its enactment of Section 15, now § 15 [37-15], Tit. 37 O.S. 1951, provided that the "words" "`This Act'" wherever they may appear, in any part of the laws of Oklahoma, enacted for the suppression of the liquor traffic, commonly called prohibition laws, shall be construed to include all such prohibitory laws of the State. Held: That the provisions of Section 15 cannot be construed as making Section 12, the second offense statute, applicable to Section 8, the public drunkenness statute, by force of the fact that the 1907-08 public drunkenness statute was not reenacted and published at length as part of Chapter 70 of the 1910-11 Session Laws, in accordance with Section 57, Art. V, of the Constitution of Oklahoma, already fully quoted.

8. Drunkards - Habitual Drunkards Prosecuted for Misdemeanor of Vagrancy. By specific provision of statute, habitual drunkards may be prosecuted for the misdemeanor of vagrancy. Tit. 21 O.S. 1951 § 1141 [21-1141].

Original proceeding for writ of habeas corpus by Thelma Overturff. Writ granted.

Jimmie Whiteley, Tulsa, and M.S. Simms, Sand Springs, for petitioner.

Mac Q. Williamson, Atty. Gen., Fred Hansen, First Asst. Atty. Gen., Charles E. Steele, County Atty., Okmulgee County, Okmulgee, and O.E. Richeson, Asst. County Atty., Okmulgee County, Henryetta, for respondent.

POWELL, J.

The defendant below, petitioner here, Thelma Overturff, was charged and convicted in the superior court of Okmulgee county, Henryetta Division, for the crime of public drunkenness, second and subsequent conviction, under Title 37 O.S. 1951 § 12 [37-12], and was sentenced to serve a term of two years in the State Penitentiary. The sentence was suspended but subsequently revoked and the defendant ordered incarcerated under the original judgment and sentence. The defendant has applied for a writ of habeas corpus, seeking release from imprisonment.

This is a companion case of Ex parte Barnett, 96 Okla. Cr. 254, 252 P.2d 496, was argued along with said case, and the same assignments of error are presented in this case.

For the reasons stated in the opinion in the case of Ex parte Barnett, supra, the conviction of the defendant below, petitioner herein, in the superior court of Okmulgee county, sitting at Henryetta, is hereby set aside, the judgment and sentence entered is found to be null and void, and said Thelma Overturff is hereby ordered released from the sentence and judgment imposed.

BRETT, P.J., and JONES, J., concur.