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[Cite as Salter v. State, 2 Okla. Crim. 464, 479, 102 P. 719, 725 (1909). NOTE: This decision concerns fourth amendment (and Oklahoma's § 30 analog) probable cause. Regarding this protection, the court quoted Judge Cooley, "it has not been deemed unwise to repeat in the state Constitutions, as well as in the Constitution of the United States, the principles already settled in the common law upon this vital point in civil liberty." (P. 724) The court enumerated various individual rights and included the right to arms: "The freedom of thought, of speech, and of the press; the right to bear arms; exemptions from military dictations; security of the person and of the home; the right to speedy and public trial by jury; protection against oppressive bail and cruel punishment--are, together with exemption from self-crimination, the essential and inseparable features of English liberty. Each one of these features has been involved in the struggle above referred to in England within the century and a half immediately preceding the adoption of the Constitution, and the contests were fresh in the memories and traditions of the people at that time." (P. 725) Leading up to this point, the court averred: "We have a Constitution in which the utmost pains have been taken to preserve all the securities of individual liberty, ... The Legislature cannot alter, annul, or avoid the constitutional safeguards of person and property set forth in the Bill of Rights. ... Expediency has no force as an argument in a court of justice. To countenance such a theory would be to strike a fatal blow to constitutional safeguards. The abuses and perversions of sound principles which would creep into the law by yielding to arguments like these--to what is supposed to be necessary for the public good--cannot be better stated than it was by Justice Bradley...." (P. 725) Cf. federal Supreme Court decisions which similarly identify the right to arms with established individual rights. United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990); Griswold v. Connecticut, 381 U.S. 479, 488, 490-493 (1965); Dred Scott v. Sandford, 60 U.S. 393, 417, 450-451 (1857). It should be noted the cited Supreme Court decision in Boyd v. U.S. does not contain the comment regarding the Second Amendment. The U.S. Reports version of Brown v. Walker, 116 U.S. 591 (1896), has Justice Field making the same quote and attributes it similarly to Justice Bradley in Boyd v. U.S. (id. at 635). The Supreme Court Reports version of Brown appears to be corrected and attributes the quote: "As said by counsel for appellants:..." with no cite to Boyd. It appears the Oklahoma judge took the text from Brown without checking Boyd, and that Brown was the result of either an error by Justice Field, or the court reporter, which was later corrected by West publishing.]

[Salter v. State continued
Return to pages 719-724.
Currently at pages 725-726.]

[paragraph continued from previous page] U.S. v. Tureaud, supra. The constitutional provision in the Bill of Rights is but a reiteration of this essential safeguard of the liberty and security of the citizen against the arbitrary action of those in authority. Such pernicious practice may suit the purpose of despotic power, but is alien to the pure atmosphere of political liberty and personal freedom. The Constitution expressly requires a showing of cause before a warrant shall issue, and the constitutional safeguards for security and liberty cannot in this manner be abrogated or abridged. They must stand as adopted by the people.

Counsel for the state further contends that: "Without conceding that said information is on its face defective, in that it is not properly and sufficiently verified, I submit that defendant has waived any such defects or irregularities, in that he did not demur to the information at the proper time." We cannot agree with counsel for the state; and while some authorities hold that, where a plea of not guilty is entered, and no objection is made to the insufficiency of the information, and competent evidence is received, supporting the averments thereof, the court acquires jurisdiction, however, in this case, while the better practice would have been to have filed a motion to quash, or a demurrer to the information, the objection as made was to a fundamental defect, and not to a matter of form, and was therefore sufficient. See Mulkins v. United States, supra.

We have a Constitution in which the utmost pains have been taken to preserve all the securities of individual liberty, and the courts cannot refuse obedience to its mandates. The Legislature cannot alter, annul, or avoid the constitutional safeguards of person and property set forth in the Bill of Rights. They are beyond the reach of any legislative enactment. And the argument that defendant's failure to comply with a statutory provision of procedure is a waiver of his constitutional rights is fallacious. Expediency has no force as an argument in a court of justice. To countenance such a theory would be to strike a fatal blow to constitutional safeguards. The abuses and perversions of sound principles which would creep into the law by yielding to arguments like these--to what is supposed to be necessary for the public good--cannot be better stated than it was by Justice Bradley in Boyd v. U.S., 116 U.S. 616, 6 Sup.Ct. 524, 29 L.Ed. 746. After reviewing those famous landmarks of liberty and law, the Wilkes Case, and the case of Intick v. Farrington and Three Other King's Messengers, 19 How. State Trials, 1029, and the history of the fourth and fifth amendments to the Constitution of the United States, the learned justice continues as follows: "It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than substance. It is the duty of courts to be watchful for the constitutional rights of the citizens, and against any stealthy encroachments thereon. Their motto should be 'obstat principii.'" And the same great and learned justice adds: "The freedom of thought, of speech, and of the press; the right to bear arms; exemptions from military dictations; security of the person and of the home; the right to speedy and public trial by jury; protection against oppressive bail and cruel punishment--are, together with exemption from self-crimination, the essential and inseparable features of English liberty. Each one of these features has been involved in the struggle above referred to in England within the century and a half immediately preceding the adoption of the Constitution, and the contests were fresh in the memories and traditions of the people at that time."

It is sometimes said that, if the validity of a statute is merely doubtful, if its unconstitutionality is not plainly obvious, the courts should not be ready to defeat the action of the legislative branch of the government; and it must be conceded that, when such questions arise, under the ordinary exercise of the legislative power, it is plainly the duty of the courts not to dispense with the operation of laws formally enacted, unless the constitutional objections are clear and indisputable. On the other hand, when the courts, are confronted with a clear and explicit provision of the Constitution, and when it is proposed to avoid or modify or alter the same by a legislative act, it is their plain duty to enforce the constitutional provision, unless it is clear that such legislative act does not infringe it in letter or spirit.

Section 2, art. 24, of the schedule of the Constitution of Oklahoma provides: "Sec. 2, All laws in force in the territory of Oklahoma at the time of the admission of the state into the Union, which are not repugnant to this Constitution, and which are not locally inapplicable, shall be extended to and remain in force in the state of Oklahoma, until they expire by their own limitation or are altered or repealed by law." The pertinent provision of the Criminal Code of Oklahoma Territory has been by the Supreme Court of Oklahoma Territory declared unconstitutional and void in the cases of U.S. v. Miller and Mulkins v. U.S., supra, and under the foregoing clause of said schedule we believe said provision to be clearly repugnant to the Constitution. It is manifestly in conflict with (p.726)one of the plainest provisions of the Bill of Rights. It, therefore, did not become a part of the adopted laws of this state.

As the question presented is not only important in the determination of the present case, but is a very grave question of constitutional law, involving the right of personal liberty and the security of the citizen, we have reviewed and carefully considered all the adjudications on this question; and, believing that the conclusion reached in the cases quoted is supported by reason and authority, we adhere to, and reaffirm, the legal principles thus announced. But we limit the decision to informations charging misdemeanors. Informations in felony cases are to be tested, as near as may be, by the statutes regulating indictments, and we do not wish to indicate in advance what we should hold in a case where the information charges a felony. It is our opinion, therefore, that the information did not authorize the issuance of the warrant of arrest. It does not support the judgment of conviction, and no valid judgment can be rendered upon it.

The judgment will therefore be reversed, and the cause remanded to the county court of Carter county, with directions to dismiss the case.

BAKER, J., concurs, and FURMAN, P. J., concurs in the conclusion only.

[Return to pages 719-724.
Currently at pages 725-726.]