"Every judge of any election, member of any board of canvassers, messenger or other officer authorized to take part in or perform any duty in relation to any canvass or official statement of the votes cast at any election, who willfully makes any false canvass of such votes, or makes, signs, publishes or delivers any false return of such election, knowing the same to be false, or willfully defaces, destroys or conceals any statement or certificate entrusted to his care, is guilty of a misdemeanor." And that upon the authority of Warner v. Mathews, District Judge, 11 Okla. Cr. 122, 143 P. 516, the district court is without jurisdiction to try misdemeanors, whether they involve official misconduct or not. Prohibition is an extraordinary writ, and cannot be resorted to when the ordinary and usual remedies provided by law are available.
The evidence which the caveators offered to produce tending to show that the alleged testatrix did not know the contents of the instrument alleged to be her will, is competent and should have been admitted. Waterman v. Whitney, 11 N.Y. 157; Barbour v. Moore, 4 App.D.C. 535; Olmstead v. Webb, 5 App.D.C. 30; Adams v. Norris, 23 How. 353; Thompson v. Updegraff, 3 W. Va. 629 (cited in the Holt case); Couch v. Eastman, 27 W. Va. 796 (cited in the Holt case); Cranmer v. Anderson, 11 W. Va. 582; Jarretts v. Jarretts, 11 W. Va. 584; Mathews v. Warner, 4 Ves. 186; Pemberton v. Pemberton, 13 Ves. 290; Norris v. Sheppard, 20 Pa. 275; Neel v. Potter, 40 Pa. 283; Storrett v. Douglass, 2 Yeates, 46; Trumbull v. Gibbons, 2 Zab. 140; Crispell v. Dubois, 4 Barb. 399; Stewart's Exr's v. Lispenard, 26 Wend. 261; Throckmorton v. Holt, 180 U.S. 552, discussed and distinguished from the case at bar. Mr. B.F. Leighton and Mr. C. Clinton James for defendants in error and appellees.
In the case of Reel v. Reel, 1 Hawks, N.C. 248, it was decided that evidence was admissible of the declarations of a testator made at any time subsequent to the execution of the will, which went to show that the testator believed the contents of the will to be different from what they really are; or declarations by testator of any other circumstances which show that it is not his will are admissible. The same point was decided in the case of Howell v. Barden, 3 Devereux, 442; Hester v. Hester, 4 Devereux, 228. See also Mathews v. Warner, 4 Ves. jr. 186 to 210; Small v. Allen, 8 Durnf. East, 147. The decision of the Supreme Court of Tennessee in Weatherhead v. Sewell et al., 9 Humphreys, 272, we contend, with great deference, proceeds upon the doctrine of refusing parol evidence to explain or add to a will in a case of construction, and does not apply to receiving evidence to show that no will ever existed. The evidence offered and received in this cause by the Circuit Court was legal evidence to show that there was no devise to complainant of an equal share of the land of Anthony Bledsoe, and the jury had a right to draw the conclusion that there was no will to that effect.
"The Criminal Court of Appeals will issue a writ of prohibition to prohibit a district court from proceeding in a criminal action of which it has no jurisdiction, and of which the county court has exclusive jurisdiction." Warner v. Mathews, 11 Okla. Cr. 122, 143 P. 516. "The writ of prohibition is that process by which an appellate court prevents an inferior court from usurping or exercising unauthorized jurisdiction."
ANDERSON and BURKS, J's, concurred in the opinion of Christian, J. MONCURE, P., concurred in the results and most of the opinion of Christian, J.; but only because the question was decided by this court in Mathews v. Warner, 29 Gratt. 576, when he was not present. JUDGMENT AFFIRMED.
See, Reubin v. Thompson, Okla., 406 P.2d 263. This Court held in the case of Warner v. Mathews, 11 Okla. Cr. 122, 143 P. 516: Special act defining crime controls over general statute.
See Ray v. Stevenson, 71 Okla. Cr. 339, 111 P.2d 824, where the county court was proceeding in an action over subject matter of which he had no jurisdiction. Also illustrative of a case where jurisdiction of the court was involved, is Warner v. Mathews, 11 Okla. Cr. 122, 143 P. 516. A writ of prohibition was granted because the petitioner was being prosecuted there for a misdemeanor, when the county court had exclusive jurisdiction of misdemeanors.
The writ of prohibition is a highly remedial writ, and as a general rule will not be granted unless absolutely necessary. The right of this court and the Supreme Court to grant the writ cannot be questioned. Ex parte Herrin, 67 Okla. Cr. 104, 93 P.2d 21; Herrin v. Arnold, 183 Okla. 392, 82 P.2d 977, 119 A.L.R. 1471; Ex parte Wood, 71 Okla. Cr. 200, 110 P.2d 304; Vandervort v. Keen, 184 Okla. 121, 85 P.2d 405; Corley v. Adair County Court, 10 Okla. Cr. 104, 134 P. 855; Warner v. Matthews, Dist. Judge, 11 Okla. Cr. 122, 143 P. 516. The Criminal Court of Appeals has no desire to exercise the right of prohibition or of habeas corpus in passing upon the constitutionality of statutes, but as above stated, has the undoubted right to do so, and under certain circumstances will exercise that right. The latest expression of this court was in the case of Ex parte Strauch, 80 Okla. Cr. 89, 157 P.2d 201, where we said:
"This court has held in former decisions, construing section 3213, that the offense of embezzlement by an officer is complete so soon as he wrongfully fails or refuses to account for or pay over any money in his official capacity, as required by law. Warner v. Mathews, 11 Okla. Cr. 122, 143 P. 516; McDaniel v. Brown, 16 Okla. Cr. 149, 181 P. 156. "If the information in this case had been based on section 3213, the facts here shown, if the acts were corruptly done, might have been sufficient to sustain a conviction; but it was essential under the information filed to show that this officer made a private, personal appropriation of the fund, or an appropriation not in keeping with his official trust, to sustain the conviction under the provisions of section 7437, under which this action was maintained.
At the outset, we are confronted with the proposition as to whether prohibition is the proper remedy for relief in this class of cases. In Warner v. Mathews, 11 Okla. Cr. 122, 143 P. 516, 518, it is stated: "We deem it sufficient to say that the legitimate scope and purpose of the writ is to prevent an inferior court from proceeding in an action over the subject-matter of which it has no jurisdiction."