Blake v. State
| Decision Date | 26 September 1962 |
| Docket Number | No. A-13190,A-13190 |
| Citation | 375 P.2d 270 |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
| Parties | William Dean BLAKE, Plaintiff-in-Error, v. The STATE of Oklahoma, Defendant-in-Error. |
Syllabus by the Court
1. It is not jurisdiction that the testimony in a preliminary hearing be reduced to writing unless either the county attorney or the defendant request it, and where there is no showing in the record that any request was made, failure to have it taken is not error, and in such case, a transcript of the proceedings had in the county court, with the exception of the testimony properly endorsed by the committing magistrate is sufficient to confer jurisdiction on the district court for trial on the merits.
2. Where one is charged in the district court by information, and desires to raise the question of not having had a preliminary examination, or question a defect in the transcript of the committing magistrate, this should be done by a plea in abatement, or by motion to quash the information.
3. Where a defendant voluntarily enters a plea of guilty, or enters a plea of not guilty, and goes to trial, he will be deemed to have waived any right he may have had to question the fact that he did not have a preliminary examination, or that the transcript filed by the committing magistrate in the district court is insufficient.
4. If the defendant upon arraignment pleads to the merits and enters on the trial, he waives the right to preliminary examination, or, if one was held, any irregularities therein.
5. A defendant, prosecuted for a public offense, whose trial has been postponed upon his application is not in position to urge dismissal for delay.
6. Sentence of seven years in state penitentiary for conviction of burglary in second degree not excessive. 21 O.S.1961 § 1436.
7. An inmate of the state penitentiary with a prior criminal conviction is not entitled to deduction for his term of imprisonment served in the county jail prior to being received at the penal institution.
Appeal from the District Court of Mayes County; John Q. Adams, Judge.
William Dean Blake was convicted of the crime of burglary in the second degree, and appeals. Affirmed.
Carl W. Longmire, Pryor, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Ass't Atty. Gen., for defendant in error.
William Dean Blake was charged in the district court of Mayes County, Oklahoma with the crime of burglary, second degree, under 21 O.S.1951 § 1435; was tried by a jury, found guilty and his punishment left to the court. The court sentenced him to serve seven years in the state penitentiary. Appeal has been perfected to this court.
In his motion for new trial the defendant sets out six assignments of error, and the same assignments appear in the petition in error. However, in his brief for reversal defendant urges only three of these assignments, which we shall consider in the order argued.
Complaint was filed in the county court of Mayes County on December 2, 1960, charging the defendant and another with the crime of burglary in the second degree, by breaking and entering, in the night time, on August 31, 1960, the drug store of one Derby Lee in the town of Adair, Mayes County, Oklahoma.
This defendant was apprehended in Laport, Indiana on December 22, 1960, waived extradition and was return to Mayes County on March 17, 1961 and placed in the county jail. There is explanation of the delay.
Preliminary hearing was held on March 28, 1961, the county judge sitting as an examining magistrate, and defendant was bound over to the district court. Bail was set at $3000.
Information was filed in the district court April 6, 1961. The minutes of the court show that J. Ralph Moore was appointed to represent the defendant, who entered a plea of not guilty, and defendant's bond was fixed at $2500.
The case was assigned for trial in the district court, and on June 8, 1961 the defendant filed a motion for continuance, on the ground that he could not proceed to trial at that time, and asked that the case be stricken until the next jury term. The motion was granted.
The case was assigned for trial for October 23, 1961, the next term of court, and on that date defendant filed an application to have the case dismissed for delay. This motion was overruled and the case tried on that date.
The state introduced four witnesses, as did the defendant.
Derby Lee owned and operated a drug store in the town of Adair, and his wife Charlie Lee, who testified that she was a pharmacist, assisted in the operation of the store. The store had been burglarized a number of times, and a burglar alarm system had been installed, whereby an alarm sounded in the home of the Lees, about two blocks from the drug store.
On the night in question the alarm sounded at 3 a. m., and Mr. and Mrs. Lee immediately went to the drug store. They both testified to seeing two men in the store, and when Mr. Lee shouted for them to throw up their hands, they ran out the back door. The burglars had entered by breaking the glass in the rear door, reaching in and turning the lock. Both Mr. and Mrs. Lee identified the defendant as one of the men in the store, and the one nearest the front door, only a few feet from them. There was a car with an Indiana license plate parked near the store headed toward the highway, and when the men ran out the back door Mrs. Lee took up a position in front of the automobile. Before leaving home the Lees telephoned a neighbor, across the street from the drug store, and asked him to call the sheriff, and the sheriff arrived on the scene in about ten minutes.
The two men made good their escape, and the sheriff took charge of the automobile and had it towed to Pryor, county seat of Mayes County. There were two suit cases in the car, one full of clothing, and the other containing a small amount of clothing. Part of the clothing had the defendant's name stamped on it. The automobile had two license plates, one bolted over the other. The sheriff, through the highway department learned that one of the tags had been issued for a 1955 Ford, and the other to the defendant for a Chevrolet.
The suit cases were placed in the vault at the sheriff's office, and after the defendant was returned to Mayes County in March, 1961, the sheriff permitted him to remove part of the clothing, some of which he later wore, and some he sold to get money for cigarettes.
The defendant testified in his own behalf; stated that he had served 9 years and 6 months in the Indiana Reformatory; that he had a 'record' in and around his home town of Laport and could not get work there; that he and his co-defendant James Walter Howard and one Thomas Payne left Laport together to go to Albuquerque, New Mexico to look for work. That the car they were driving belonged to a Lou Ann Blakeman of Laport; that he remembered being in a tavern in Missouri but did not know when they left; that he was drunk and asleep on the back seat of the car when he was aroused by a shot. He stated, 'In fact we had been drunk for the last 30 days.' He testified he got out of the car, hid by the side of a building and finally made his way to the highway and hitch hiked back to Laport. He denied ever being in the Lee Drug store; stated that he had never heard of the town of Adair until he was back in jail in Pryor.
The defendant's first contention is that the court erred in overruling defendant's motion to remand to the county court for another preliminary hearing. He cites Art. 2, § 17 of the Oklahoma Constitution, and the statute, 22 O.S.1951 § 258.
The Constitution provides that no person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination; and Title 22 O.S.1951 § 258 provides, among other things:
'On the request of the county attorney, or the defendant, all the testimony [at a preliminary hearing] must be reduced to writing in the form of questions and answers and signed by the witnesses, or the same may be taken in shorthand and transcribed without signing, and in both cases filed with the clerk of the district court, by the examining magistrate.'
It will be seen from this law vitalizing this provision of our Constitution that it is not jurisdictional...
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