Collins v. State

• Decision Date: 21 March 1911
• Citation: 114 P. 1127,5 Okla.Crim. 254,1911 OK CR 72
• Parties: COLLINS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

114 P. 1127

5 Okla.Crim. 254, 1911 OK CR 72

COLLINS v. STATE.

Court of Criminal Appeals of Oklahoma

March 21, 1911

Syllabus by the Court.

When a regular time is fixed for the terms of courts of record, and such court fails to convene upon the date fixed or within two days from such date, and no judge pro tem is selected as provided by law, the term lapses.

Where the regular term of the court is permitted to lapse, no proceedings can be had until the next regular term, or until a term is called in the manner provided by law. Any judgments rendered by a court out of term time and after the term has lapsed are void.

Appeal from Superior Court, Muskogee County; Farrar L. McCain Judge.

J. C Collins was convicted of violating the prohibitory law, and appeals. Reversed and remanded.

De Roos Bailey and J. E. Wyand, for appellant.

Smith C. Matson, Asst. Atty. Gen., for the State.

ARMSTRONG J.

There are a number of assignments of error made by appellant, but the only one we deem it necessary to pass upon here is the jurisdictional question first discussed in the original brief of counsel for the appellant, raising the proposition of the lapse of the September term of the court and nullity of the judgment of conviction by reason of such lapse. The 1909 Legislature created superior courts in counties of this state having a population of 30,000 or more, and having a city of 8,000 or more (chapter 14, art. 7, § 1, Session Laws of 1909). Muskogee county under this act was entitled to a superior court. Section 4 of the same article provides that the Governor shall appoint a judge for each of such courts and provides further that the judge so appointed "shall by order fix the terms of said court at not less than four terms each year; provided, that the first term of said court shall begin as soon as practical after said court is organized under the provisions of this act." The superior court of Muskogee was organized on the 2d day of August, 1909. Judge Farrar L. McCain, who had been previously appointed judge of said court by the Governor of Oklahoma and who had qualified on the 21st day of July, 1909, was present and presiding. An order was by him made that there should be six terms of the superior court of Muskogee county held each year, to be begun and holden on the second Monday of September, November, January, March, May, and July respectively. The first term of said superior court under this order was to be begun and holden on the second Monday of September, 1909. On the second Monday in September, which was the 13th day of said month and the day set by the court for the opening term, Judge McCain, the duly qualified judge of said court, was unable to appear and hold court, and he instructed the clerk by telegraph to excuse the jurors until the 4th day of October, 1909, with...