IN THE SUPREME COURT OF THE STATE OF OKLAHOMA.

FT. SMITH WHOLESALE GROCERY COMPANY, Defendant in Error.

(Rendered September 30, 1911.)

Error from the County Court of Le Flore County.

Action by the Fort Smith Wholesale Grocery Company against George W. Noble, Judgment for the Plaintiff. Defendant brings error. Affirmed.

I.

1. The act of May 26th, 1908, Session Laws of Oklahoma, p. 558, commonly known as the "Bulk Sales" law, which declares that a sale in bulk shall be presumed to be fraudulent and void as against creditors of the seller unless certain specific conditions have been complied with, is not in contravention of, nor repugnant to, the due process clause, nor the equal protection clause, of the fourteenth amendment of the federal constitution.

2. Neither is said act violative of any of the provisions of the state constitution.

3. The subject to which the said act relates is clearly within the police powers of the state.

4. A chattel mortgage, covering a stock of merchandise, where the mortgagor remains in possession, and has the usual right of redemption, creates a lien only, and does not pass title, and is not a sale, exchange or assignment within the meaning of said act, and is therefore, not within the inhibition of said statute.

SYLLABUS.

ROBERTSON, C.

CURRENT DECISIONS OF THE SUPREME COURT OF OKLAHOMA.

IN RE HABEAS CORPUS OF

ROB MILLSAP.

(Rendered September 26th, 1911.)

No. 2782

Original Application in Habeas Corpus.

Writ Discharged and Prisoner Remanded.

1.

In habeas corpus if the process is valid on its face it will be deemed prima facie legal, and the prisoner assumes the burden of impeaching its validity by showing a want of jurisdiction.

2. To constitute larceny of an estry, animus furandi must exist at the time defendant first took possession of the animal

3. The plea of not guilty puts in issue the averment in the indictment of the place where the larceny was committed, also the animus furandi, and imposes on the. prosecution the necessity of proving the locus delicti and the animus furandi.

4. Where on a plea of not guilty to an indictment for larceny the jury found the defendant guilty as charged in the indictment, and, in effect, that the prisoner committed the offense within the jurisdiction of the court, as alleged, he cannot impeach that finding on habeas corpus by showing that the place where the offense was committed is without the jurisdiction of the court.

(Syllabus by the Court.)

Wadlington & Wadlington, for petitioner.

Ben Franklin, County Attorney of McClain County, for the State.

OPINION OF THE COURT BY TURNER, C. J.

On June 27th, 1911, pursuant to the prayer of his petition, one of the justices of this Court ordered that a writ of habeas corpus issue directed to the Sehriff of McClain County by whom petitioner alleged himself to be illegally restrained of his liberty. He further alleged the cause thereof to be a certain judgment of conviction on an indictment for larceny and sentence thereon of the District court of said county that he be confined in the State Penitentiary for one year-which said judgment he says is void, for want of jurisdiction, and from which, in due time, he prosecuted, by petition in error and case-made his appeal to the Criminal Court of Appeals, which had dismissed the same--the record in said cause is made an exhibit to his petition. The power of this Court to issue this writ and examine the proceedings of the trial court so far as may be necessary to ascertain whether that court exceeded its authority is no longer an open question. Quoting approvingly from er parte Harlan, 1 Okla. 48, the Court in In Re Patswald, 5 Okla. 789, said:

"The law is well settled that in a case like the present, in which the petitioner is in execution upon a conviction, the writ of habeas corpus ought not to be awarded, if the trial court had jurisdiction of the person and of the crime charged, and did no act beyond the powers conferred upon it. And the proceedings of the trial court will be examined so far as necessary to determine the question of jurisdiction. And if it appears that the court transcended its powers, the writ will be granted and the prisoner discharged even after judgment. But if the trial court had jurisdiction and power to convict and sentence, the writ cannot issue to correct more errors.”

Hence, as stated in Ex Parte Lange, 16 Wall 163:

"Disclaiming any assertion of a general power of review over the judgments of the inferor courts in criminalcases, by the use of the writ of habeas corpus or otherwise. we proceed to examine the case as disclosed by the record

of the Circuit Court and the return of the marshal, in whose custody the prisoner is found, to ascertain whether it shows that the court below had any power to render the judgment by which the prisoner is held."

The process seems fair on its face. Where this is the case, the rule is stated in the Patswald case, supra, to be:

"If the process is valid on its face, it will be deemed prima facie legal, and the prisoner must assume the burden of impeaching its validity by showing a want of jurisdiction."

From the proceedings of the trial court and the return to the writ it appears that at the September, 1968, term of the District Court of McClain county petitioner was indicted for the larceny of a COW McClain, State of Oklahoma", *

"in said

*

county of "ou or about

the 10th day of September, 1908, and anterior to the presentment hereof" "of the value of $15.00."

*

There was a plea of not guilty. Said indictment was based upon Snyder's Stats. of Okla., Sec. 2006, which reads:

"That if any person shall steal any stallion, mare, coìt, gelding, ridgling, or any ass, genet, or mule, or any bull, cow, calf, steer, or stag, he shall be guilty of a felony and on conviction thereof shall be punished by confinement in the State penitentiary for a term (of) not less than one. nor more than ten years."

In his opening statement the County Attorney stated that at the time of the taking of the animal in question was an estray and such it was conceded and the undisputed testimony shows it to be. This being the state of the record petitioner contends that the court was without authority of law to render the judgment of conviction because, he says, an estray was not a subject of larceny. Not so. To constitute larceny of an estray afterwards converted, as was this one, by defendant to his own use, by disposing of it to a butcher in McClain county, after statehood, as he admits, the felonions intent to misappropriate must exist at the time he took possession. Where such

intent or animus furandi exists he is guilty of larceny.

Starck vs. The State, 63 Ind. 285; Borer v. State, 28 S. W. 951; Burger v. The State, 83 Ala. 36; Gosler v State, 56 S. W. 51; Adolphus Cameron v. The State, 44 Tex. 652; Matt. Debbs v. The State, 43 Tex. 650; Wash Beatty v. The State, 61 Miss. 18: The State v. White, 126 Mo. 591: Michael Lamb v. State of Nebraska, 40 Neb. 312; J. B. Pitts v. The State, 3 Tex. Court of Appeals 210: Fred McCarty v. The State, 36 Tex. Crim. Rep. 135; The State of Missouri, Appellant, vs. Joseph Casteel, et al., Respondents, 53 Mo. 124: The State, Respondent, v. Martin, Appellant, 28 Mo. 530. The existence of this intent the jury found as a fact, under proper charge of the court, and in effect that the larceny was committed at the time petitioner first took the animal into his possession. This finding is conclusive on us and cannot be reviewed in this proceeding. Brown on Juris., Sec. 110, says:

"THE THREE ESSENTIAL ELEMENTS NECESSARY TO RENDER CONVICTION VALID:

* * * These are, that the court must have jurisdiction over the subject-matter, the person of the defendant, and authority to render the particular judgment. If either of these elements are lacking the judgment is fatally defective. Where these elements exist the judgment of the court is final and conclusive as against the world, and errors in ruling on motions, demurrers, the reception or exclusion of evidence, or in the determination of the facts by the jury, cannot be tried or reviewed by the writ of habeas corpus."

It is next contended, in effect, that as the verdict of the jury fixed the larceny as having been committed at the time of the taking and the undisputed testimony showed that said taking was in Indian Territory before the erection of the State, that the venue of the offence charged was proved to have been at a place without the jurisdiction of the court and where said statute was not in force.

In other words "that the prosecution failed to