Bogan v. State. rant commanding and directing the officer to hold the property so seized in his possession until discharged by due process of law, and such property shall be held and a hearing and adjudication on said return had in like manner as if the seizure had been made under a warrant therefor." On the 12th day of January, 1914, the sheriff of Kay county appeared before the county judge of that county and filed the following statement: "IN THE COUNTY COURT OF KAY COUNTY, STATE OF OKLAHOMA. "State of Oklahoma, Plaintiff, v. W. D. Bogan, Lot 6, Blk. 49, Hartman, Defendant. "Officer's Return. "State of Oklahoma, Kay County-ss.: "To the Honorable Claude Duval, Judge of the County Court of Kay County, Oklahoma: "This certifies that on the 3d day of January, A. D. 1914, I seized the following described goods and chattels used in his place of business known as Bogan's Pool Hall, as follows: [Then follows an inventory of the property, consisting of a stock of cigars, tobacco, pipes, pool tables; soda fountain and fixtures; 1 metal water cooler; 2 cash registers; several pieces of glassware; 14 cuspidors; 2 gas stoves; 2 cue racks; 2 sets pool balls; 2 square tables; 1 graphophone; 25 graphophone records; 1 bed and bedding; 1 cigar case; 1 tobacco case; about 25 or 30 chairs; 2 slot machines; 1 rubber cloth; 2 doors; quantity of paper bags; 2 letter files; 2 gaslight fixtures; 1 shotgun with extra barrel and case; 1 telephone; 1 iron bed and springs; several towels; 1 metal letter box; 1 gas meter; 1 electric meter; 1 pint bottle part full whisky; 1 quart bottle part full whisky.] "Together with the property above described, in the possession of W. D. Bogan, within the city of Ponca City, Opinion of the Court. Kay county, Oklahoma, which place was being used and conducted for the unlawful purpose of receiving, keeping, bartering, selling, giving away, and otherwise furnishing the above-described liquors to others unlawfully. "Wherefore I, as sheriff of Kay county, ask that said goods as above described be dealt with according to law. "Dated this 10th day of January, A. D. 1914. "HUGH JOHNSTON, "Sheriff of Kay County, Okla. "State of Oklahoma, Kay County-ss.: "I, Hugh Johnston, being first duly sworn, upon my oath depose and say that he has read the above return and complaint, knows the contents thereof, and that the statements therein are true. "HUGH JOHNSTON. "Subscribed in my presence and sworn to before me this 12th day of January, A. D. 1914. "[Seal] CLAUDE DUVAL, Co. Judge." On the same day the judge of said court issued the following warrant: "STATE OF OKLAHOMA, TO THE SHERIFF OF KAY COUNTY. OKLAHOMA: "Whereas, you have returned and filed in said court your return and complaint showing that on the 3d day of January, 1914, you seized one pint bottle partly full of whisky, and one quart bottle partly full of whisky, and other property consisting of tobacco, cigars, cash registers, tables and various other articles, while in the possession of W. D. Bogan, and known as Bogan's Pool Hall, in the city of Ponca City, Kay county, Oklahoma, and alleging that said liquor and property was in a place used and kept and conducted for the unlawful purpose of receiving, bartering, selling, giving away, and otherwise furnishing intoxicating liquors to others unlawfully: Bogan v. State. "Now, therefore, this is to command you to retain and keep in your possession all of the property described and mentioned in your said return and complaint until the further order of the court. "Witness my hand and the seal of said court this 12th day of January, 1914. "[Seal] CLAUDE DUVAL, County Judge." Indorsed as follows: "Received this writ Jan. 12, 1914, and executed the the same by holding the within-mentioned goods in my possession as herein commanded. "HUGH JOHNSTON, Sheriff of Kay County.” On the 14th day of January the court fixed the 23d day of the same month, at nine o'clock a. m., for the purpose of determining whether said liquors and property should be forfeited to the state, and to permit any persons claiming the same to appear, if they so desired, and to file a written plea of intervention, and show the character and extent of their claim, as provided in the preceding sections. The hearing was continued to January 29th, at which time W. D. Bogan, designated as defendant below, and plaintiff in error herein, appeared and filed his motion to quash the return of the sheriff above set out, upon the following grounds: (1) That no warrant had been issued. for the seizure of said property; (2) no complaint had been filed charging the defendant with the commission of any offense against the laws of the State of Oklahoma; (3) the return of the sheriff does not charge or allege that the property seized was used, or kept for unlawful purposes, or with intent to violate the law. The motion was overruled, and exceptions saved. Thereupon the defendant entered a demurrer to the re Opinion of the Court. turn upon the grounds: (1) That the court had no jurisdiction to try and determine the case; (2) that the facts stated and alleged in the return are not sufficient to constitute a crime against the laws of the State of Oklahoma, and are not sufficient to constitute a cause of action against this defendant, or to warrant a forfeiture of the property set forth therein. The demurrer was overruled by the court and exceptions saved. The defendant then filed plea of intervention as follows: "Comes now W. D. Bogan, the defendant and claimant, and alleges and avers: That the property herein attempted to be forfeited, excluding and excepting the two bottles of whisky, are the property of and belong to this defendant, W. D. Bogan, and further states and alleges that the said property, with said above exception, was at no time used or kept for an unlawful purpose, or used in connection with or for the purpose of violating any laws of the State of Oklahoma." When the case was called for trial on the 29th day of January, the defendant demanded a jury, which demand and request was overruled and denied by the court, and exceptions saved. The defendant, still insisting upon his right to trial by jury, refused to proceed to trial before the court without a jury; whereupon the court, without hearing any evidence in the case, dismissed the defendant's interplea, and entered judgment of forfeiture of said property, and directed the sheriff to forthwith destroy the following articles: "One pint bottle partly filled with whisky, and one quart bottle partly filled with whisky, as well as the contents of such bottles; 1 box of poker chips; 2 slot machines; cider; cigarettes and cigarette papers." Bogan v. State. The court further found that the remainder of the property, a small part of which is hereinabove designated, is of value and adapted to lawful use, and ordered the sheriff to turn the same over to the board of county commissioners of Kay county to be sold, and the proceeds thereof paid into the court fund of said county. To all of which the defendant excepted, and brings error. Two questions are here presented for the consideration of this court: (1) Was there any showing, ground, or basis for issuing the warrant for the seizure of the property involved? (2) Was the defendant entitled to a trial by jury? The first proposition goes directly to the question of jurisdiction. Section 5, supra, provides, in substance: * * or "If it shall be made to appear to any district or county judge or justice of the peace that there is probable cause to believe that liquors are being sold, otherwise furnished or kept for the purpose of selling, or otherwise furnishing in violation of law, said judge or magistrate shall issue a warrant, directed to any officer of the county whom the complaint may designate." Section 6 provides that: "Upon the return of such warrant as provided in the preceding section, the judge shall fix a time for hearing said return." In this case the warrant, dated January 12, 1914, and directed to the sheriff, shows on its face that the property was seized before the warrant was issued. The language of the warrant is: "Whereas, you have returned and filed your return and complaint showing that on January 3, 1914, you |