Opinion
No. A-224.
Opinion Filed November 22, 1910.
(Syllabus by the Court.)
INDICTMENT AND INFORMATION — Necessity of Indictment — Felony Antedating Statehood. A defendant charged with the commission of a felony prior to statehood, in that portion of Oklahoma which then constituted Indian Territory, can be prosecuted only by indictment.
Appeal from District Court, Muskogee County; John H. King, Judge.
The defendant was prosecuted by information for the crime of forgery and sentenced to seven years' confinement in the state penitentiary and appealed. Reversed.
Powell Parks, for plaintiff in error.
Smith C. Matson, Asst. Atty. Gen., for the State.
The defendant was prosecuted by information for the offense of forgery, alleged to have been committed on the 16th day of August, 1907, in that portion of the State of Oklahoma which, prior to statehood, constituted Indian Territory. This being the case, the defendant could be prosecuted for this offense by indictment only, as the law with reference to information was not then in force in that section of the country. Under a provision of the Enabling Act, the terms of which were adopted and accepted by our Constitution, a defendant charged with having committed a crime in the Indian Territory before statehood is entitled to be tried and dealt with under the law as it existed in that territory.
The trial court therefore erred in overruling the demurrer of the defendant to the information. The Attorney General confesses error in this matter. The judgment in this case is therefore reversed, with directions to the lower court to set aside the verdict and dismiss the prosecution.
DOYLE and RICHARDSON, JUDGES, concur.