State v. Ogden
628 P.2d 1167
Okla. Crim. App.
1981
Check Treatment

*1 Legislature provide plainly for when the its expresses statute was amended by grandparents visitation the when “one intent.6 are or if parents or both of the deceased Affirmed.

they again are divorced.”3 statute provide amended in for grandpa- IRWIN, J., LAVENDER, and SIMMS C. rental visitation when “both are parents DOOLIN, JJ., and concur. they of if are divorced.”4 deceased BARNES, WILLIAMS, V. C. and It is the father that when both argued by ALA, JJ., and OP dissent. HARGRAVE married, parents they are alive and have right the to decide who associates visits and children,

with their and that Legisla- merely privilege ture has accorded to same to the natural surviving parent. The ma- of the triune court jority held that Legislature could have intended to “distin-

guish between cases where one only parent

is surviving parent deceased and the has a

legitimate need to control the contacts Oklahoma, Appellant, The STATE (includ- which a with may child have others ing grandparents, and cases in which both OGDEN, Shirley Appellee. parents are and there deceased exists a weaker need of the new ‘parent’ to do the No. O-79-603. same.” of Oklahoma. Appeals Court of Criminal

We agree with the decision of the of the The statute is majority triumvirate. 13, 1981. May clear and lan unambiguous.

guage O.S.Supp. 19785 authorizes

grandparental visitation when both

parents are deceased. There is no room for

construction or for further provision inquiry rights rights. to the such court shall be of visitation visitation Notice as ordered shall have reasonable given person parent child, to the or of the child. when it is in the best interest having custody of said child and the venue of courts are vested district such action shall be in the of the resi- rights make or- visitation and to enforce such person parent. dence of such or thereto, upon filing a veri- ders relative rights. No- application visitation fied for such provided by O.S.Supp.

3. It is 1975 5 in given be the court shall tice as ordered pertinent part: custody having parent person of said or parents When one or both are deceased or if be in venue of such action shall and the child divorced, they parent any grandparent, are who is the person or of the residence of the parent. par- of the child’s deceased or divorced ent, rights shall have reasonable of visitation to child, parent one natural is deceased When when it inis the best interest of the remarries, any surviving parent subse- juris- natural child. The district courts are vested with rights quent adoption proceedings diction to enforce such make orders a shall not terminate visitation thereto, upon filing par- rights belonging relative any grandparental application rights. verified for such visitation parent unless or- deceased natural ents of the given Notice as ordered the court shall be opportunity to be the court and after dered person parent having custody or of said heard, it is provided deems the district court child and the venue of such action shall be the child. the best interest of person the parent. of the residence of such 4, supra. 5. See note provided by O.S.Supp. 4. It is 5 in 1978 § Ward, (Okl. P.2d 6. Johnson v. pertinent part: . Harold, 1975); Indemnity Special Fund v. parents they When both are deceased or if (Okl. 1965). divorced, any grandparent, par- are who is the parent, ent of the child’s deceased or divorced *2 K. Mor- Fallís, Atty., Dist. Susan

S.M. . Atty., appellant Dist. gan, Asst. Tulsa, Keating, appellee. Frank

OPINION

BUSSEY, Judge: charged by Shirley Ogden, Appellee, in Tulsa District Court County information the misde- No. CRM-79-1269 Case of Alco- of Unlawful Sale meanor offense in Beverage, violation holic a demurrer judge sustained 505. 505 does not ruling that § sale of the drink liquor establishment drinking employee appeals the sale occurs. The in which a upon purportedly law. in the

This issue has been resolved favor the decision of this Court State’s (Okl.Cr. in Hisaw v. 1979), a decision handed down after liquor by here. sale of ruling at issue in a beverage is a sale of alcoholic drink in the Alco anywhere not authorized form Act, Beverage holic Control Hence, clearly a sale seq. et such §§ set out 37 O.S. prohibition violates the employee making employment of his or her in the course sale aid establishment is at least drinking in a abetting an unlawful sale ing and under principal is liable as a employer, and proscriptions 172. The law, 37 open saloon 505 and will 538(h) Art. and Okl.Const. We are of the in some cases. overlap H69 which petition choice of entertain a in those for an extraordinary charge under is a statutory provision rulings writ the case of on questions of It prosecutor’s matter discretion. law arising frequently avoiding appel- but posited would that the appear late review. is not the case here. The Such should be in favor of the decided State. Hisaw, supra, post-dated decision in the rul- ing here, at issue and we are confident that *3 However, the opinion we are of be, proceedings further will not and are not that is not properly State before being, conducted in a manner inconsistent court The 22 this matter. with that decision. procedure appealing 1053 on a re- § applies served of law to re- Accordingly, purported appeal by the following judgment acquittal on a State reserved of law is here- the defendant or an order the court by DISMISSED.

authorized law as an bar to Robinson, prosecution. further v. See State CORNISH, J., concurs. (Okl.Cr.1975) 544 P.2d 545 v. and State Lemmon, (Okl.Cr.1978). 574 P.2d 1057 A BRETT, J.,P. dissents. demurrer to the information or indictment which is sustained the court is a bar to BRETT, dissenting: P. prosecution further under 22 I respectfully dissent to this decision. However, 508 has been repeatedly § § the present System, Under Oklahoma Court held this to apply only felony Court formerly given inappli- the reasons charges, not misdemeanors. Though this 508, 22 cability justi- are not limitation expressed was first as a result of Stout, fied. In v. this supra, State Court the old court’s lack of over authority stated, concerning 508 and other related juries, Dodson, Ex grand see Parte 3 sections: 514, (1910), Okl.Cr. 107 P. 450 Green v. apply only felony “The above statutes (1926) Okl.Cr. 243 P. 533 in the case of and do not Stevenson, v. Ray Okl.Cr. 111 P.2d that misdemeanors for the reason (1941), the same construction was sug- to di- authority court is without Stout, gested in Okl.Cr. grand to a rect a case to be resubmitted (1949), P.2d 199 in the context of a demur- jury.” rer to a misdemeanor reorga- When the structure was court that clearly suggesting legisla- such was the to Article 1969 amendment nized tive intent in enacting prede- 508 and its Constitution, VII, to the Oklahoma cessors. The Legislature has not amended Misdemeanor county court was abolished. otherwise indicated that the court court, in the district cases are now tried intention, has, fact, misread its long resubmit the case authority which has acquiesced in judicial this construction. that a new or direct grand jury another Subsequent reorganization, court combining filed. information be powers courts, of the various former court, as the in the district court, compel does not a different conclu-

sion, judicial since the construction was not grounded so much in split

among legisla- former courts as in the enacted, tive intent at the time 508 was as manifested thereby.

Accordingly, opinion we are of the appeal under 22 on a lie here. question of law will not This is not to that this could not say Court