Claghorn v. Brown

• Decision Date: 17 January 1973
• Docket Number: No. A--17889,A--17889
• Citation: 505 P.2d 998
• Parties: Elizabeth Jane CLAGHORN, Petitioner, v. Elvin J. BROWN and Alan J. Couch, Judges of the District Court of Cleveland County, Oklahoma.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 998

505 P.2d 998

Elizabeth Jane CLAGHORN, Petitioner, v. Elvin J. BROWN and Alan J. Couch, Judges of the District Court of Cleveland County, Oklahoma.

No. A--17889.

Court of Criminal Appeals of Oklahoma.

Jan. 17, 1973.

Stockwell & Pence, Norman, for petitioner.

Larry Derryberry, Atty. Gen., Michael Cauthron, Asst. Atty. Gen., Charles F. Alden, III, Legal Intern, for respondents.

OPINION

BRETT, Judge.

This is an original proceeding in which petitioner is seeking an alternative writ of prohibition to prevent petitioner's trial for murder in the District Court of Cleveland County, Oklahoma, Case No. CRF 72--465.

An information was filed September 29, 1972, charging petitioner with the crime of murder. Preliminary examination was held on November 1, 1972, before the Honorable Alan J. Couch, Associate District Judge, acting as Magistrate. At the conclusion of the preliminary examination the Magistrate entered his order and bound petitioner over to stand trial on a charge of manslaughter second degree. The Magistrate's minute recites: '. . . and (the) court finds sufficient evidence to establish that a crime of manslaughter in the second degree was committed and reason to believe that the defendant committed that crime. Defendant held for trial on next jury docket and defendant allowed to remain on present bond.'

At the hearing on this Court's Rule to Show Cause, the Court was informed that the prosecutor attempted to appeal the magistrate's ruling to the Presiding Judge of the District Court, under the provisions of State ex rel. Fallis v. Caldwell, Judge, Okl.Cr., 498 P.2d 426 (1972), but the Honorable Judge correctly declined to assume jurisdiction. However, after the trial judge refused to consider the purported appeal on November 6, 1972, the Magistrate entered a second minute which reads: '. . . upon oral motion by the State to reconsider ruling of preliminary hearing, case set for motion hearing 9 November, 1972 at 11:30 A.M., leave granted State to file formal motion and notice hereby given to defendant.' At the second hearing the prosecutor admitted that he had no new evidence to offer, but only wanted the Magistrate to reconsider, his decision and bind petitioner over on a charge of murder instead of manslaughter. At the conclusion of that hearing the Magistrate entered his third and final minute--some eight days after the preliminary hearing was had--binding petitioner over to stand trial for murder. That minute reads as follows:

'The court inherently exercising its powers, to correct its judgment, upon reconsideration of the evidence herein as transcribed finds its previous judgment to have been improvidently made. Upon reconsideration the court concludes there is evidence if believed that would justify a finding that murder was committed and that this defendant committed it. The previous ruling holding the defendant for trial on manslaughter 2 is vacated and she is ordered to trial on this jury docket on Wednesday Nov. 15, 1972 at 9:00 A.M. Defendant remains on bond posted.'

On November 13th petitioner filed in the trial court a Motion to Quash the Information and Objection to the Magistrate's Granting of the State's Motion to Reconsider; and also filed a Motion for Continuance, asking that the case be stricken from the trial docket. The trial court denied both motions and granted exceptions. On the same date petitioner filed the petition in this Court, asking for issuance of the Alternative Writ of Prohibition, and for a Stay of Proceedings in the trial court. This court entered its Rule to Show Cause, set the matter for hearing on November 22nd, and entered a Stay Order. At the conclusion of the hearing in this Court, the Court requested further briefs which have now been filed by both sides.

The question presented herein is: 'Does the Magistrate possess inherent power to reopen a preliminary examination for further consideration, after the commitment order has been entered requiring the accused to stand trial?' Or stated another way, 'When does the examining magistrate's jurisdiction terminate?'

Petitioner asserts that the Magistrate was without jurisdiction to accept the State's motion to reconsider his order; and that the trial court erred in denying petitioner's motion to quash the information charging the offense of murder. Under the facts presented, we believe petitioner is correct.

Article II, Section 17, Oklahoma Constitution, requires that the accused be provided a preliminary examination in all felony cases, unless the same is knowingly and intelligently waived. Title 22 O.S.1971, § 254, provides for good cause the Magistrate may adjourn a preliminary examination, but we fail to find any statutory authority which authorizes the Magistrate, on his own motion, to reacquire jurisdiction over a case after the matter has been transferred to the trial court. 22 C.J.S. Criminal Law § 351, p. 907, states the following:

'In making the order of commitment . . . the committing magistrate exhausts his power, and he cannot thereafter modify his order, either under the direction of the superior court or of his own motion, except as to matter of form.' Citing People v. Bomar, 73 Cal.App. 372, 238 P. 758 (Calif.1925).

In People v. Bomar, supra, the California Court recited the following:

'If the magistrate, in the consideration of such (preliminary hearing) testimony, arrives at and pronounces an erroneous conclusion as to the crime committed thereby, it is on his part a judicial error which is beyond his power to correct.'

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'At the conclusion of the examination, the law requires that if it appears to the magistrate that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof, he must make or indorse on the complaint an order signed by him to that effect. In making this order, the magistrate has exhausted all the power in the premises with which he has been invested by law. Any attempt on his part thereafter to modify this order, either under the direction of the superior court or upon his own motion, except to correct the same in manner of form, is beyond his power and jurisdiction.' at page 760 of 238 P.

In Payne v. State, 30 Okl.Cr. 218, 235 P. 558 (1925), referring to the prosecutor's authority to file an information after preliminary examination, this Court stated:

'This is a judicial determination by the magistrate of the offense found, and, when that has been done as in this case, the county attorney is thereby authorized to file an information charging the offense for which the accused was held, or substantially the same offense. (Citations omitted)

'By the term 'substantially the same offense' is meant offenses varying only in degree, or means, or circumstances. Thus where an offense for which an accused is held is divided into degrees, and the accused is held for the higher, an information may be filed for the lower, or where the details involved differ as to means, methods, or circumstances, and the charge in the information is for some form of that offense and not a different offense, the informing officer may vary the charge in formal and nonessential matters to meet the contingencies of the testimony. But he may not add or charge a new offense. The prosecuting officer, in other words, is not permitted to substitute his judgment for that of the committing magistrate. He must look to the commitment alone for...