Ex Parte Drake

DAVENPORT, P. J. This is an original proceeding in habeas corpus. Petitioner alleges that she is unlawfully imprisoned and restrained at Oklahoma City by the chief of police of said city, John Watt; that according to the best of her knowledge and behalf she is charged with the pretended violation of an ordinance of the city of Oklahoma City for the crime of vagrancy. Petitioner alleges that said restraint is illegal and unlawful in this, that the municipal court has no jurisdiction of her because there was no written verified complaint filed against her; that the alleged judgment of conviction rendered and entered is illegal and void for the reason that it was rendered without jurisdiction; that she was not informed by a complaint in writing of the charge against her. No verified complaint was filed, as required by the laws of the state of Oklahoma, and the Constitution of the state of Oklahoma; that she is now imprisoned in violation of the laws of the state of Oklahoma, the Constitution of the state of Oklahoma and the United States, and said pro *49 cedure of the municipal court was in violation thereof; that said conviction is wholly void. At the time fixed respondent filed his reply showing that he held the petitioner by reason of a conviction in the city municipal court of the city of Oklahoma City. Testimony was taken, and it was shown that no verified written complaint was filed against the defendant charging her with a crime, and the police judge testified that he did not swear any one to a complaint charging the petitioner in this case with a crime. Petitioner contends that under the provisions of section 17, art. 2, state Constitution, and section 1, art. 7, state Constitution, and section 4639, Comp. Stat. 1921, her imprisonment without a verified complaint is in violation of the law. The respondent contends that the petitioner appeared in .the municipal court and entered her plea of guilty and by reason of that fact she waived any right to question her conviction on the ground that no written verified complaint had been filed charging her with an offense prior to her trial. Section 17, art. 2, state Constitution, in part provides : “Prosecutions may be instituted in courts not of record upon a duly verified complaint.” Section 1, art. 7, state Constitution, provides: “The judicial power of this state shall be vested in the Senate, sitting as a court of impeachment, the Supreme Court, district courts, county courts, courts of justices of the peace, * * * commissions or boards, inferior to the Supreme Court, as may be established by law.” *50 Section 1, ch. 147, of the Session Laws 1915, now section 4652, Comp. Stat. 1921, defines municipal courts and offenses against municipal ordinances. This court in the case of Ex parte Bochmann, 20 Okla. Cr. 78, 201 Pac. 537, said: “In this state a municipal court is a constitutional court and as such is bound by the constitutional provision found in. section 17 of the Bill of Rights: ‘Prosecutions may be instituted in courts not of record upon a duly verified complaint.’ * * * “That part of section 650, R. L. 1910 [section 4639 Comp. Stat. 1921], providing that ‘The complaint when made by the marshal, assistant marshal or regular policeman against any person arrested without process * * * need not be in writing,’ is in conflict with section 17 of the Bill of Rights. Held, that all prosecutions of a criminal nature should be maintained upon a verified written complaint.” The respondent insists that the petitioner by entering her plea waived the statute requiring a verified complaint to be filed, and that she cannot now be heard to complain. The laws of this state require a sworn complaint to be filed in order that the municipal courts may acquire jurisdiction of a charge of violation of a city ordinance. This is not disputed by respondent, and the only reason respondent gives for holding the defendant is that she by coming into the municipal court and entering her plea and receiving a sentence waived the requirement of the statute requiring the filing of a sworn complaint. Respondent cites a number of authorities which he insists sustain his position. After a careful reading of the authorities relied on by respondent we cannot agree that they sustain his contention. The majority of the cases cited by the respondent relate to the irregularity of the *51 procedure in courts of record, and we do not think they are applicable to the facts in this case. In State v. Sheffield, 45 Utah, 426, 146 Pac. 306, in the second paragraph of the syllabus, the court said: “A verified complaint or an affidavit before a magistrate, charging accused with a public offense, is essential to a preliminary examination, since without it the magistrate’s jurisdiction to act is not judicially invoked.” In White v. State (Tex. Cr. App.) 35 S. W. 391, the court said: “A complaint is a prerequisite to a prosecution on information; and, where the record fails to show that one was filed, a conviction cannot be sustained.” In Gilbert v. State, 17 Ga. App. 143, 86 S. E. 415, the Court of Appeals of Georgia, in the second paragraph of the syllabus, said: “An affidavit, neither attested by an officer authorized to administer oaths, nor purporting to be sworn to in open court, is void as the basis of a criminal proceeding.” Every person accused of a crime in this state, under the Constitution and statutes, has a right to be informed of the nature and cause of the accusation against him; to be represented by counsel, and to have compulsory process to obtain witnesses in his behalf. It is difficult to see how this provision can be complied with without a definite verified accusation or complaint. We think section 17, art. 2, considered in connection with section 1, art. 7, state Constitution, and section 4652, Comp. Stat. 1921, contemplates that, in a prosecution whereby a person accused of an offense may be fined or imprisoned, the nature of the accusation against him shall be set out *52 in a verified complaint, so that the accused person may be informed of the nature of the accusation against Mm, and, where a municipal judge assesses a fine or imprisonment, against an accused for the violation of a municipal ordinance without a written verified complaint having been filed, he is without jurisdiction, and the party restrained of her liberty is entitled to be released on habeas corpus. Ex parte Bochmann, supra; Ex parte Mosgrove, 47 Okla. Cr. 40, 287 Pac. 795. The filing of a verified complaint is jurisdictional and may not be waived. For the reasons stated the writ is awarded, and petitioner discharged. CHAPPELL, J., concurs.