Later courts went against this
Overruled on other grounds by State v. Young, 65 O.B.A.J. 1571 (1994)
Id.; see also State v. Ogden, 1981 OK CR 57628 P.2d 1167overruled by State v. Hammond, 1989 OK CR 25775 P.2d 826overruled by Young, 1994 OK CR 25874 P.2d 57 did not contemplate motions to quash pursuant to Section 504.1 in Young or Ogden.
The opinion
LUMPKIN, Judge,
dissenting:
I respectfully dissent. The issues presented here are first, how to characterize Appellee’s motion; second, whether a ruling by the trial court in favor of a defendant on a motion to quash for insufficient evidence can be appealed by the State; and third, if so, under what authority-
The record shows that on April 20, 1987, Appellee filed his Motion to Quash Arrest and Suppress Evidence on the grounds that there was no probable cause for arrest and therefore the subsequent seizure of evidence was invalid. On September 16, 1987, the Appellee filed his Amended Motion to Quash, contending that the State had failed to allege the necessary elements of the offense charged. While Appellee’s motion as amended was in fact a demurrer to the information, by holding a hearing, allowing inquiry as to the sufficiency of the evidence supporting the element of force or violence, and making its ruling based on the sufficiency of the evidence, the trial court transformed Appellee’s motion into a motion to quash for insufficient evidence.
The common law has been incorporated into our statutes. See 22 O.S.1981, § 9. A motion to quash replaces the common law plea in abatement. Royce v. Territory of Oklahoma, 5 Okl. 61 , 47 P. 1083 (1897). It is not “judicial legislation” to apply the common law. In addition, a motion is an application by a party to a suit for an order from the court. Landrum v. State, 96 Okl.Cr. 356 , 255 P.2d 525 (1953). As such it may encompass a wide variety of matters which may not be specifically enumerated in the statutes: Barber v. State, 388 P.2d 320 (Okl.Cr.1963) (Motion Objecting to Introduction of Evidence); Holt v. State, 505 P.2d 500 (Okl.Cr.1973) (Motion to Suppress). To agree with the majority’s holding that a motion to quash for insufficient evidence is a fiction because it has no statutory authorization would be contrary to the common law and accepted trial procedure *830 and would require this Court to hold that since the trial court had no authority to so rule upon a fiction, its ruling must be vacated and the charges reinstated for trial on the merits.
It is true that this Court has been troubled by motions to quash for insufficient evidence. We have held that a district court ruling upon a motion to quash and motion to suppress resulting in insufficient evidence and dismissal of the information cannot be appealed under 22 O.S.1981, § 1053(1) because appeal under that section can only arise from the setting aside of an indictment or information under § 493. State ex rel. Macy v. Jackson, 659 P.2d 361 (Okl.Cr.1983); State ex rel. Fallis v. Patton, 637 P.2d 1266 (Okl.Cr.1981). The fallacy of these holdings is that Jackson relies solely upon Patton as authority, and Patton cites no authority.
We have also held that a motion to quash for insufficient evidence at the preliminary hearing comes under § 493 because although the section contains no specific provision for insufficient evidence, case law provides an indictment must be found on legal and competent evidence or be subject to being set aside pursuant to § 493. Still v. Dalton, 624 P.2d 76 (Okl.Cr.1981). Under Still’s reasoning, appeal by the State is proper under § 1053. However, Still’s application of the holdings in the two eases it cites is misplaced. Spivey v. State, 104 P.2d 263 (Okl.Cr.1940), states that an indictment is invalid and may be quashed where there is no legal and competent evidence upon which it was based, but then limits such evidence to the statutory grounds set forth in § 493. Royce v. Territory, 5 Okl. 61 , 47 P. 1083 (1897) refers to the statutory provisions now encoded in § 493 as proper challenges to legal and competent evidence supporting an indictment. It is interesting to note that Still fails to cite as authority State v. Truesdell, 620 P.2d 427 (Okl.Cr.1980), which holds that in addition to the grounds set forth in § 493, a motion to quash the information may be used to challenge the sufficiency of the evidence presented at preliminary hearing.
In the present case the Appellee did not base his motion on any of the grounds contained in § 493. Nor was his motion a challenge to evidence presented at preliminary hearing, inasmuch as he was charged with a misdemeanor. However, the State should not be precluded from appealing under § 1053(1). The fundamental rule of construction of a statute is to ascertain and give effect to the intention of the Legislature as expressed in the statute. Davis v. State, 300 P.2d 1000, 1007 (Okl.Cr.1956). The legislative intent should be sought in the ordinary meaning of the words of a statute, construed in view of the connection in which they are used. Brown v. State, 314 P.2d 362, 365 (Okl.Cr.1957). The court may look to each part of the same, to other statutes upon the same or relative subjects, and to the natural or absurd consequences of any particular interpretation. Thomas v. State, 404 P.2d 71, 73 (Okl.Cr.1965). When two different provisions regulate the same subject matter, both provisions are to be given effect if such effect would not defeat the intent of the Legislature. State v. Smith, 539 P.2d 754, 757 (Okl.Cr.1975).
Section 1053(1) in no way restricts its application to appeals from the setting aside of an indictment or information under § 493. It clearly states appeal is proper “[u]pon judgment for the defendant on quashing or setting aside an indictment or information.” The ordinary meaning of these words allow appeal from a ruling for a defendant on his motion to quash, regardless of whether he moved to quash based upon grounds enumerated under § 493 or because the evidence was insufficient. It is the duty of the Legislature, not this Court, to narrow the application of § 1053(1) to § 493.
In accordance with the views expressed herein, appeal has been properly brought under § 1053(1), necessitating that we address the merits. I would find that the degree of force necessary to constitute the crime of assault and battery is only the slightest force or touching in accordance with Oklahoma Uniform Jury Instruction OUJI-CR 420. I would further hold that because jeopardy had not attached, the State may proceed against the Appellee.
*831 Additionally, another misapplication of § 493 needs to be addressed. This Court has previously held in Ray v. Stevenson, 71 Okl.Cr. 339 , 111 P.2d 824 (1941), that Sections 493, 496, 498, 499, 500, 501, 502, 504, 507 and 508 apply only to felonies, not misdemeanors. Ray’s reasoning was based upon the court structure prior to 1969, in which the county court handled all misdemeanors and did not have the authority to direct a case to be resubmitted to a grand jury. In State v. Ogden, 628 P.2d 1167, 1169 (Okl.Cr.1981), Judge Brett in his well-reasoned dissent noted that since the reorganization of the courts provides that mid-semeanor cases are now tried in the district court which has the authority to resubmit the case to another grand jury or direct that a new information be filed, 22 O.S. 1981 , § 508 should apply to misdemeanors as well as felonies. This Court should adopt Judge Brett’s dissent and hold that Sections 493 through 510 apply to both felonies and misdemeanors. Insofar as this ruling conflicts with the following cases, they should be overruled: Royce v. Territory of Oklahoma, 5 Okl. 61 , 47 P. 1083 (1897), Ex Parte Dodson, 3 Okl.Cr. 514 , 107 P. 450 (1910), Green v. State, 33 Okl.Cr. 268 , 243 P. 533 (1926), Ray v. Stevenson, 71 Okl.Cr. 339 , 111 P.2d 824 (1941), State v. Stout, 90 Okl.Cr. 35 , 210 P.2d 199 (1949), State v. Robinson, 544 P.2d 545 (Okl.Cr.1975), and State v. Ogden, 628 P.2d 1167 (Okl.Cr.).