Cavett v. Territory , 1 Okla. Crim. 493 ( 1908 )

The plaintiff in error filed his motion for rehearing herein, in which he contends: That the judgment of the district court in this case is wrong, and that the decision of the court affirming the same is therefore wrong, and both should be reversed, for the reason that the judgment of this court delivered December 23d last, is contrary to the law, and is not sustained by the law. That said decision was rendered under a misapprehension of the law.

The petition for rehearing sets forth a lengthy discussion of the authorities relied upon by the plaintiff in error, and lays special stress upon the claim that the grand jury in the case at bar was impaneled contrary to law and in contravention of the doctrine laid down by the United Circuit Court of Appeals in the case of Sharpe v. United States, 138 F. 881, 71 C.C. 258. That this court disregarded in its decision of this case that portion of section 4200 of Wilson's Revised and Annotated Statutes of Oklahoma of 1903, which reads as follows:

"But the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally construed to promote their object."

Counsel for the accused urge at length, in the petition for rehearing, that this court, in considering the case of Clawson v.United States, 114 U.S. 477, 5 Sup. Ct. 949, 29 L.Ed. 179, overlooked the distinction between that case and the case at bar, insomuch as in the Clawson Case the jury complained of was a petit jury, and in this case the jury complained of was a grand jury. The accused also contends that this court gave consideration to cases that were decided by the courts of the territory of Oklahoma prior to June 12, 1905, the date of the decision of the Sharpe Case, supra. Counsel for the accused in the petition for rehearing raise no new questions, nor do they cite any additional authorities. All the questions raised by the petition for rehearing were urged in the brief of the accused filed in support of the petition in error, and were fully and carefully considered by this court.

This court, after again fully considering this case and all the authorities cited by the able counsel for the accused, and carefully considering the allegations of the petition for rehearing, and the authorities therein cited, is still of the opinion that there was no prejudicial error in the record, and that all the material rights of the accused have been fully respected and protected, and that the decision of this court handed down on the 23d of December, 1908, is just and proper, and therefore the petition for rehearing should be, and the same is, hereby overruled.